COMMISSIONER KERR

IN TRSPARJTIOWj.

The Reminiscences of a
Metropolitan Magistrate.
By A. C. Plowden. With
Photogravure Frontispiece.
Demy 8vo, cloth, i6s. net.

London : T. Fisher Unwin.

COMMISSIONER KERR

teed by

kind ftrmisti,,

the

••VAXITY

COMMISSIONER KERR

AN INDIVIDUALITY

BY

G. PITT-LEWIS, K.C.

WITH TWO PORTRAITS

"Jus turn et tenacem propositi virum "

HORACE, Odes, III., 3. i.

LONDON: T. FISHER UNWIN
PATERNOSTER SQUARE - 1903

(All rights reserved.}

PREFATORY REMARKS

BY the title " Commissioner Kerr — an Indi-
viduality," the writer seeks to convey, in the
fewest possible words, the impression of the late
Commissioner's strong personal characteristics, of
which those cited in the five words on the title-page
were the most dominant. He was above all things
Vir Justus et propositi tenax.

This Memorial is an attempt to place before the
world the chief incidents and turning-points in the
career of a man whose obiter dicta were, for nearly
half-a-century, household words throughout the
country; and will, it is hoped, lead to a juster
and more generous appreciation of his life and work
as a whole than he obtained when living.

The writer has, in the preparation of the work,
been indebted for much valuable aid, to the Town
Clerk of London, to the officials of the City of
London Court, to Mr. A. E. Nelson, a well-known
member of the Bar who practised there largely in
Admiralty, to Mr. George Kebbell, a solicitor, and
a friend of the late Commissioner, to the Rev. Vincent
Borradaile, of St. Mary's, Munster Square, to a

Prefatory Remarks

member of the congregation of that church, and also
to Mr. Grover, shorthand writer at the Court, and
long private secretary to the Commissioner. Where
considerations of space so allow, the contemporary
words of others, especially of The City Press, are
given verbatim, that the writer may be absolved
from any suspicion of unduly friendly bias.

G. P.-L.

TEMPLE, June, 1903.

VI

CONTENTS

CHAPTER I

PAGE

ROBERT MALCOLM KERR's BIRTH, FAMILY, EDUCATION — CALL TO
SCOTCH BAR— EARLY YEARS THERE — AND EXTENDED "GRAND
TOUR" . I

CHAPTER II

KERR EMIGRATES TO ENGLAND — IS CALLED TO THE ENGLISH BAR —
MARRIES A DAUGHTER OF CHARLES KNIGHT. .

CHAPTER III
KERR'S EARLY PROFESSIONAL PURSUITS — SEEKS A CITY OFFICE —

CIRCUIT LIFE — EXPERIENCES AS A DEPUTY COUNTY COURT JUDGE

— PROFESSIONAL PUBLICATIONS . . . . .26

CHAPTER IV

THE FIGHT FOR THE JUDGESHIP OF THE SHERIFF'S COURT OF LONDON —
OBSERVATIONS ON THE EXERCISE OF JUDICIAL PATRONAGE — KERR
IS ELECTED TO THE JUDGESHIP . . . . • 73

CHAPTER V

"MR. COMMISSIONER KERR" CLEANSES AN AUGEAN STABLE; AND HIS

CONDUCT, JURISDICTION, DUTIES, AND SALARY ARE DISCUSSED . 115

CHAPTER VI

THE JUDGE OF THE CITY COURT DISPLAYS CHARACTERISTIC METHODS,
FRUSTRATES FRAUDS, AND SPEAKS WISE AND WITTY WORDS —
PARODIES OF TRIALS IN HIS CIVIL COURT . . . -189

vii

Contents

CHAPTER VII

PAGE

THE COMMISSIONER AT THE OLD BAILEY ADMINISTERS STERN JUSTICE
TEMPERED WITH APT MERCY— TRAVESTIES OF HIS WAYS AT THE
OLD BAILEY . . . . . . . .242

CHAPTER VIII

THE PART PLAYED BY THE COMMISSIONER IN PASSING POLITICS, AND

POLITICAL VIEWS HELD BY HIM . . . . 267

CHAPTER IX

THE PART IN PUBLIC LIFE TAKEN BY THE COMMISSIONER AS CHAIR-
MAN OF A METROPOLITAN BOARD OF GUARDIANS . . . 278

CHAPTER X

THE COMMISSIONER'S PRIVATE LIFE, INTERESTS, ASSOCIATIONS, AND
PURSUITS ........ 287

CHAPTER XI

THE DEVELOPMENT OF "THE CITY OF LONDON COURT" DURING THE
COMMISSIONER'S JUDGESHIP . . . . . . 327

CHAPTER XII
THE COMMISSIONER'S FINAL BREAKDOWN— RETIREMENT AND DEATH—

WITH SOME APPRECIATIONS OF HIS LIFE, WORK, AND CHARACTER 350

APPENDICES

APPENDIX A.-Judge's Salary and Judge's Fees Received by the

Corporation in Each Year . . . • • 375

APPENDIX B.-Total Suitors' Fees Levied in Each Year, and

Annual Increases Thereon . ^77

APPENDIX C.-The Regulations which Governed Clifford's Inn . 379

INDEX

39i

viii

ILLUSTRATIONS

COMMISSIONER KERR .

From the Vanity Fair Cartoon.

THE COMMISSIONER'S COAT-OF-ARMS .

Explained at p. 3.

MR. COMMISSIONER KERR, Mi. 73

Painted by his son, Charles Kerr, 1894.

. frontispiece

Title-page

.Facing p. 73

JlX

CHAPTER I.

ROBERT MALCOLM KERR's BIRTH, FAMILY, EDUCATION-
CALL TO SCOTCH BAR - EARLY YEARS THERE - AND
EXTENDED "GRAND TOUR."

OBERT MALCOLM KERR, in after life, for
JLV many years, known to every one as " Mr. Com-
missioner Kerr," was born at Saint Mungo, Glasgow,
on June 5, 1821. His father, Mr. John Kerr, was a
Writer to the Signet (a Scotch term for solicitor) and
also Commissary Depute for Hamilton and Campsie.
He clearly was one of those energetic, hard-headed,
and hard-working men who had laboured, for years
previously, to obtain those political and municipal
reforms effected just before the accession of the late
Queen Victoria, in the eventful period between the
years 1829-40, which saw so many political changes
consummated. Some of these workers were under
the belief that they were Conservatives. Mr. John
Kerr, W. S. of Glasgow, had no such delusion. He
was one of the earliest members of the Reform Club,
and of considerable local celebrity in Glasgow.

In the Glasgow Herald (May 6, 1890), John Kerr
was described as having been, at one time, a prominent
member of a local literary coterie there which, in the
early days of the century, exercised itself in the cause

i B

Commissioner Kerr

of municipal and political reform. This body formed
a " Sma Weft Club," and, after the fashion of the day,
published a book of thirteen "pieces." These were
satires against the system of borough and municipal
administration then prevailing in Glasgow, and attacked
many of the then Glasgow citizens and Corporation
officers under such uncouth pseudonyms as " Fozie,"
"Blueskin," " Sour-Ploom," and the like. The only
copy* of the " Noctes Sma Weftianae " in existence
describes them as " published by the printer of this
title-page, the ingenious Typographer John Carfrae
Malcolm, No. 28, Nelson Street, 1849." It is
still of much local historical interest, and was
accordingly presented by the Commissioner to the
Mitchell Library at Glasgow. This John Kerr was,
among other things, an active election agent. He
was interested in the elections for Dumbartonshire,
Lanarkshire, and his own native county of Ayr. He
also acted as agent for the late Mr. Pleydell Bouverie
during the whole time that gentleman sat as M.P. for
the Kilmarnock Boroughs.

The future Commissioner's father came of the
ancient family of " Kerr of Kerrsland in ye shire of
Ayr," which claims to have been settled in Ayrshire
before the date of the Norman Conquest. One
branch of it is now represented by the Duke of
Roxburgh, and another by the Marquis of Down-
shire. When, in April 1891, the Commissioner was
invited to have his armorial bearings placed within
the Court buildings, he erected in stained glass in a
window in the City of London Court the family
arms, as cut on a stone over the entrance door to the

His Early Days

present House of Kersland in 1604, by one Daniel Ker
—whose initial it bears (engraved K err of Ker ris land,
p. 28). A stone with the same arms cut upon it was
once over the door of the garden wall at the ancient
residence of the Kerrs. These arms with the " differ-
ence" that the "chevron" is "cottised" were re-granted
by Lyon King-at-Arms (the Herald for Scotland) to
John Kerr, the father, with the addition of a crest and
motto. As re-granted they are described in heraldic
language as " quarterly, first and fourth gules, on a
chevron 'cotticed ' argent, three mullets of the first"
(for Ker), " second and third argent, on a Saltire azure,
between four bears' heads erased gules ; five mullets
of the first (for Malcolm), a Canton of the third, gutte
d'eau, thereon a lion rampant, double qued of the
field (for Monfode of that Ilk)." To these are added,
" an appropriate helmet and a mantling, Gules, doubled
argent ;" while, on a wreath of the bearer's liveries, is
a crest, viz., a mullet as in the arms, and, in an escrol
over the same, the motto "Praise God." The arms,
as re-granted, introduce and allude to the descent
of the Kerrs of Kersland from " Monfode of that
Ilk." This can be traced clearly enough, but it is
extremely intricate and difficult to state exactly and
concisely what this family connection was, a Scotch
pedigree, such as this, being more difficult to follow
than even a Cornish one. A scion of the Monfode
family, one Simon de Montfort, centuries ago " in-
vented " our English House of Commons, and the
Commissioner was proud of being even remotely
connected with so famous a man.

A family tradition says that, in the reign of

3

Commissioner Kerr

Charles II., some member of the Commissioner's
branch of the family of Kerr of Kerrsland was created
a baronet. The present writer, though he has peculiar
facilities for doing so, in consequence of being the
Senior Honorary Counsel to the Society of Baronetage,
has never, however, been able to find any trace of
such a creation.

Commissioner Kerr's pride in his family was not
based on that mere empty vanity which leads the
possessor of nothing save a long pedigree to boast
that he is "the tenth transmitter of a" mere name,
or perhaps of even some commonplace feature. He
firmly believed in the teachings of modern science as
to heredity. These tell us that mental attributes, as
well as physical features, are often mysteriously trans-
mitted to even the remote descendants of a man of
strongly marked character. Pride in mere long de-
scent he would have scorned : lineal descent from men
of great mental attainments he valued.

Innumerable were the gifts made by him to
churches and public libraries, which he believed to
have been, however remotely, connected with those
ancestors. Amongst them there appears to have been
a certain sturdy Scotch Covenanter of the name of
Robert Kerr of Kerrsland, who does not fill any
prominent place in Scotch histories, and is not men-
tioned in the Dictionary of National Biography. But
the Commissioner found out all about this bearer of
the family name, and believed him to have been an
ancestor, though he always felt unable to assert
positively that this was one beyond doubt. He ac-
cordingly, in 1891, by leave of the proper authorities,

4

His Early Days

erected a memorial brass in the parish Kirk of Dairy
to the memory of this Covenanter, and also placed a
similar Brass in one of the windows of the south wall
of the north transept of Utrecht Cathedral. These
Brasses bore the following inscription : —

JBt (Emnplum
l&oberti J&m

qui, Krtigionte cauga

apufc

<a.fl>. XVIII. lul. 2D^ &* &• MDCLXXX.

8b mnttorianam

&nnig mnfce jam mctte,

^. lurr
et, ut gpmt, atitae Con^tanttae non

omnino non fjmgO
3|n Citiitate Eontitnenjafi filter*1

Of this Covenanter himself, the Commissioner's book,
Kerr of Kerrisland has (at p. v. of the Addenda
et Corrigenda) the memorandum following : " Al-
though the memory of the Covenanter is venerated
in the valley of the Garnock there was, for two
centuries, no monument to him of any kind, either in
the locality of his birth, or in the city where he died
an exile. This want has now been supplied. In one
of the arches of the south wall of the north transept
of the Cathedral of Utrecht, and in the Parish Kirk
of Dairy, brass tablets have been erected bearing the
inscription " set out above.

1 Fearing lest any rendering of his own should be unconsciously
warped by his knowledge of what Commissioner Kerr probably

5

Commissioner Kerr

The above extract, taken in conjunction with the
inscription on the Brass to the effect that " religionis
causa "the Covenanter " Exsulans apud Rheni Tra-
jectum Mortuus est," sufficiently explains why Utrecht
Cathedral was selected as one of the sites for the
Brasses. Moreover, a close connection is known to
have existed between the Scotch Covenanters and
the Dutch Protestants. This Robert Kerr of
Kerrsland, who was the object of the late Commis-
sioner's respect and admiration, must not be confounded
with the John Kerr of Kerrsland, who is mentioned

desired to express, viz., admiration for his ancestor's " Constantiae "
without sympathy with his religion, the author has become indebted
to Mr. John Hutchinson, the Librarian of the Middle Temple, who
did not know Kerr, for the subjoined translations : —

Literatim et verbatim rendering : —

That the Example
Of Robert Kerr of Kerrslande
Who, in the cause of Religion,

In Exile,
At Utrecht, departed this life,

the 15 Dec. A.D. 1680,
To memory and posterity it might hand down;

This Monument,
After the lapse of two hundred years,

Has erected Robert M. Kerr,
(Of his name, and, as he hopes, of his old-world
Constancy in some measure the inheritor)
Judge in the City of London.

Freely translated : —

That it may hand down to posterity and to the remembrance of
mankind the example of Robert Kerr of Kerrslande, who, in the
cause of religion, died in exile at Utrecht the i5th of December,
in the year of our Redemption 1680, Robert M. Kerr, Judge in the
City of London (the inheritor of his name, and, as he hopes, in
some measure of his old-world independence of character) has caused,
after the lapse of two hundred years, this monument to be erected.

6

His Early Days

in Scotch history (see, for instance, Burton's History
of Scotland) as having been among the Covenanters
but not of them, and to have, to speak plainly, played
the part of a treacherous spy. A member of the
family, in writing to thank the Commissioner for
erecting a monument for " their mutual ancestor,"
spoke of this " Robert Kerr " of Kerrsland as " a man
to whose memory not only his descendants, but the
whole Church of Scotland, owes the deepest respect."
He added that " in the old churchyard adjoining lie
the remains of another Robert Kerr of Kerrsland,
who was my great-grandfather, and besides him his
descendants for two generations."

Family affection, an admiration for sturdy inde-
pendence however shown, and a naturally deep and
sincere religious feeling, no doubt united to create
in the late Commissioner's mind a respect for the
Covenanter to whose memory he erected those
Brasses. But he himself possessed a breadth of mind
which would have naturally had little sympathy with
the Covenanters. They, as a sect, were (see Blunt's
Dictionary of Ecclesiastical Sects) austere, narrow,
and bigoted. The late Commissioner himself, while
taking the broadest and most charitable views of the
religious opinions of every one, personally had leanings
to ritualistic and " High Church" or "Catholic"
views. He was, at one period of life, a regular atten-
dant at St. Mary Magdalene's, Munster Square, well
known then as one of the most " advanced" of London
churches ; and he was also an attached personal friend
of the Rev. Mr. Stuart, the Vicar.1 The words
1 See as to this /#$•/, Chap. X.
7

Commissioner Kerr

" Nominis et, ut sperat, vitae constantiae non omnino
non haeres," which he caused to be placed upon the
Brass, were doubtless intended to adroitly convey that
it was the name and the independent character of
the Covenanter which attracted the Commissioner's
admiration, rather than any sympathy with his an-
cestor's religious views.

But it is now time to return to our sketch of the
family of the late Commissioner. So let it be at once
resumed.

John Kerr, the father of the future Commissioner,
a scion of the Kerrs of Kerrsland, a slight sketch of
whose public career has just been given, commenced
early in life to practice at Glasgow as a writer. He in
1818, or thereabouts, took as a partner one Alexander
Malcolm, one of the two sons of an older Alexander
Malcolm, a ne'er-do-weel merchant who, after running
through most of the fortune brought to him by his
wife (previously a Miss Steele), had embarked at
Glasgow in the book trade with the remnant of it.
This grandfather, Alexander Malcolm, had died at
forty-one, leaving an eldest son named Robert, and
the son Alexander who in 1818 became John Kerr's
partner, together with some daughters, the second of
whom was named Elizabeth. Mr. John Kerr had at
that time either already become acquainted with
Elizabeth Malcolm, or her brother being taken into
partnership was the cause of his becoming so — it is
not very material which. At any rate he, in 1820,
being then about twenty-seven years of age, was
married to Elizabeth Malcolm, his partner's sister.
The residence of Mr. John Kerr was at Frisky Hall

8

His Early Days

(a supposed corruption of Frescoe Hall), a place on
the Clyde, mentioned by Dibdin in his Tour in
Scotland. This John Kerr, the Commissioner's father,
survived until February, 1881, when he died at the
almost patriarchal age of ninety. He had continued
to exercise his judicial duties up to the time of his
death. His portrait, painted in oils by Bewick in
1824, was afterwards engraved. Copies of the
engraving were presented by the late Commissioner
to the British Museum, the National Gallery, the
Guildhall Library, and to the Dean and Council of
the Faculty of Advocates at Glasgow.

The family of Malcolm, into which John Kerr
married, possessed very considerable literary ability.
The elder of his wife's brothers, and consequently
the maternal uncle of the late Commissioner, was, as
has been seen, one Robert Malcolm. He, in the very
year (1821) in which his sister gave birth to the future
Commissioner, superintended an edition of Goldsmith's
works (published in 1816), and wrote a memoir of their
author. It was the first good edition of those works
that had appeared. Some four or five years later
(in 1824), it was acknowledged as such, and adopted
and republished by Washington Irving. A copy of
this early and now rare edition of Goldsmith's was
in January, 1900, presented by the Commissioner to
the John Rylands Library at Manchester. Robert
Malcolm, too, was the first to draw attention to the
merits of the poet Burns, and to suggest a national
memorial to him. About four years after the birth of
the Commissioner, viz., about 1825, Malcolm became
the proprietor and editor of a high-class Glasgow paper

9

Commissioner Kerr

called The Scotch Times, which for many years was
the fearless advocate of municipal reforms, now long
since carried out in Glasgow. A crayon portrait of
this Robert Malcolm was taken in 1824, and after his
death was engraved, numerous copies of the engraving
being then distributed amongst friends.

Alexander Malcolm, the brother of the Commis-
sioner's mother, Mrs. Kerr, who had become Mr. John
Kerr's partner, fell into bad health, and had to
abandon the legal profession. He seems to have
taken to literary pursuits as far as health allowed him.
Subsequently to his breakdown he, while travelling
in search of health, wrote a series of very interest-
ing letters to his family at home, which the Com-
missioner collected in a volume which he edited, and
printed for private circulation under the title of The
Letters of an Invalid during Three Years Tour in
pursuit of Health. Like his brother Robert, Alex-
ander also had his portrait taken by Bewick in crayon
in 1824. In 1880, this, too, was engraved, and a copy
presented by the late Commissioner to the Faculty of
Procurators of Glasgow.

Robert Malcolm Kerr was the first child of the
marriage of John Kerr with Miss Elizabeth Malcolm,
the literary history of whose two brothers has just
been sketched. The early education of the future
Judge and Commissioner was received at a then
well-known " Academy " at Tillicoultry, kept by the
Rev. Archibald Browning. It was continued at
Glasgow University, and was completed in France.
When he had arrived at a sufficient age — and a
University education was at that time entered upon

10

His Early Days

and completed at an earlier age than it is now — he
proceeded to Glasgow University. He must have
been only about thirteen at the time he went to the
University. It was there that he appears to have
shown the first signs of that great ability and industry
which distinguished him in after life. For preserved
amongst his papers are two certificates. One is as to
his having attended the "Junior Humanity Class" of
the University during the Session 1833-4, and the
" Senior Humanity Class " in the following session ;
and it certifies that he gave his attendance "with
perfect regularity," that he " was examined " not fewer
than thirty times in the two sessions, that "he was
questioned almost daily," and that he " acquitted
himself much to the satisfaction " of the examiners,
while his behaviour is said to have been "perfectly
decorous" and his "general conduct unexceptional."
The other certificate is in respect of his studies in
"the Greek class," and is also satisfactory. Indeed,
such was his reputation at College that long afterwards,
in the year 1857, before he had become a City Judge,
or generally known by his edition of Blackstone, his
old University bestowed on him the distinction of the
degree of LL.D.

In all probability it was on the termination of his
University course that Robert Malcolm Kerr went to
France and completed his education. That he at
some time did this is mentioned by himself in the
book which he compiled about his family (see Kerrs-
land, at p. 102). Pretty good evidence of his having
had a continental education is furnished by the episode,
which will be mentioned later, of his trying a case at

ii

Commissioner Kerr

his Court wholly in French. As he went to Glasgow
University at the early age of thirteen, it is clear that
he could not have travelled abroad previously. We
can trace nothing of him save when he took the
" Grand Tour" in 1846-7, during the years which
elapsed between his leaving the University and his
call to the Scotch Bar in 1848, when he must have
been twenty-seven years of age. This affords further
reason for supposing that the period between leaving
Glasgow and his taking the " Grand Tour" in 1846-7
must have been the period when he was upon the
Continent to complete his education.

We have it on the authority of the late Com-
missioner himself that it was usual for students
for the Scotch Bar to proceed " to Edinburgh in
order to acquire a knowledge of the practice of the
Supreme Courts, attending the Lectures on Scots
Law, and in conveyancing at the University of
Edinburgh." In all probability therefore, after leaving
Glasgow University and spending some time abroad,
Kerr returned to Edinburgh, and there followed the
course generally taken by students.

The result of his sojourn in France was that the
Commissioner remained throughout life an accom-
plished French scholar, delighting in reading French
novels and in seeing French plays in the moments
when he allowed himself to indulge in such light
recreations. While abroad he also acquired some
knowledge of both Italian and German, though he
never became such a master of those languages as
he was of French.

A student, before he can be called to the Bar in

12

His Early Days

Scotland, must make a declaration that he has been
engaged in no " employment " during the twelve
months immediately preceding his call. This wise
provision, if extended to England, would at once get
rid of many nice questions which the Benchers of our
English Inns of Court are perpetually called on to
deal with, by saying whether the occupation in which
a man has been previously engaged is such as is con-
sistent with his being called to the Bar. In old days,
when it was the fashion for a gentleman to complete
his education by performing " the Grand Tour " of
Europe, it was usually undertaken during the twelve
months of enforced idleness which, in Scotland,
always necessarily preceded a call to the Bar. Kerr
having so recently finished his education on the
Continent, probably did not take it then ; but we
know that later on he did so. His life between
completing his education on the Continent and his
call to the Scotch Bar was probably spent as men-
tioned on the previous page.

His terms having been completed, Robert Malcolm
Kerr was in 1843 called in due form to the Scotch
Bar. The certificate of his "call" to the Scotch Bar
is preserved amongst his papers It runs as follows: —

At Edinburgh the Eighteenth day of February One thousand
eight hundred and forty-three years These do certify all whom it may
concern That Mr. Robert Malcolm Kerr as Advocate did the day
above mentioned compear T in the Court of Session and in open
Court qualify by taking the Oaths appointed by Law and by
subscribing the same and the assurance.

WILLM. DRYSDALE

Assistant Clerk of Session.

1 " Compear " is defined as " In Scots Law, to appear in Court
personally, or by Counsel."

13

Commissioner Kerr

No details as to where Kerr practised, and what he
did while a member of the Scotch Bar, are anywhere
recorded. That he enjoyed some practice, and
showed ability in the conduct of the cases which he
had obtained, is accidentally shown by a notice in a
contemporary newspaper, set out in full on a later
page (post p. 1 8), which speaks of his having
''distinguished himself on various occasions in the
Circuit Courts of Glasgow, and the neighbouring cities,
as well as in our Ecclesiastical Courts." It further
remarks that his appearances in the Scotch Courts
seem to promise distinction for him.

Kerr, not having taken the usual " Grand Tour "
previously to his call to the Scotch Bar, did so in
1846-7. At Rome he was presented to the then
Pope Gregory XVI. He extended the usual tour
by visiting Egypt and the Holy Land. The family
possess many relics of these travels, amongst which
is a walking stick made from a cedar of Lebanon.
Many objects of curiosity and antiquity were, in
later life, presented by the Commissioner to various
Museums and Libraries. He in August, 1876, pre-
sented to the Guildhall Library " Two Egyptian Jars
found in a Tomb near Karnak in 1845."

CHAPTER II.

KERR EMIGRATES TO ENGLAND IS CALLED TO THE

ENGLISH BAR — MARRIES A DAUGHTER OF CHARLES
KNIGHT.

NOT many years after his call to the Bar of his
native country Robert Malcolm Kerr, like
many another ambitious young Irishman or Scotch-
man, began to turn his eyes to England as the
promised land. After a while he determined to
become an English barrister. With this end indeed
he had proceeded to London and had entered himself
as a student of Lincoln's Inn, before taking the
extended " Grand Tour" in 1846-7, which is men-
tioned in the previous chapter, and must at that
time have been still formally " keeping his term "
for the English Bar. Before being called to it he
in ordinary course became a pupil in chambers.
The system of "pupilising" was then at its height.
This consisted in young men intended for the Bar
going to "read" for a time as a pupil in the
chambers of some member of the Bar, certificated
conveyancer, or special pleader of eminence, so as
to there thoroughly learn that branch of the pro-
fession to which they afterwards intended to devote

Commissioner Kerr

their lives. This practice was originated by a
famous lawyer, who was at first a Special Pleader,
but was afterwards called to the Bar and became
Mr. Justice Duller, being created a judge in 1778,
and made a baronet in 1790. His plan of teaching
law produced some of the .greatest lawyers this
country has ever seen. Obviously, in any system
of legal education, it is necessary that those who
propose to practise at the Bar should be both
thoroughly taught the practical side of the law and
also well trained as well in the art of advocacy — as
neither the last-named art nor a practical knowledge of
the law can be obtained merely from books. In very
old days students for the Bar gained their practical
knowledge of the law by entering as students in some
Inn of Chancery,1 and there for a time serving prac-
tically as apprentices to the solicitors who dwelt there,
until they were considered sufficiently proficient to
enter an Inn of Court. A knowledge of the art of
advocacy was obtained by such students by " moots "
or discussions in their Inns of Chancery and of Court ;
and afterwards by attendance at the Courts during the
interval which used to be interposed between a call to
the Bar at an Inn of Court and a call to the Bar in
the King's Court. The pupilising system practically
taught them simultaneously a knowledge both of Law
and of Advocacy. The method of legal education
now in fashion makes no provision for a student
gaining any practical knowledge before his call to the
Bar, and leaves him to acquire it afterwards (largely

1 See further as to this post, Chap. X.
16

Called to the English Bar

in County Courts) at the expense of his early clients
and of County Court judges who are obliged to listen
to him. Mr. Commissioner Kerr was, in after life,
never tired of pointing this out. In whose chambers
Robert Malcolm Kerr first became a pupil is well
known. On his becoming, in 1850, a candidate for
the office of Common Pleader, a Mr. S. F. T.
Wilde, who had originally practised as a Conveyancer
at Serjeant's Inn, had been subsequently called to
the Bar, and was in his prime when Kerr came to
London in the forties, in March, 1850, writes of
his knowledge of the latter, "during the time you
were in my chambers, and since you left them."
About the same date Mr. G. Tarrant Harrison, a
certificated Special Pleader of that day, speaks of
Kerr's conduct "while you were with me as a pupil
and since." Kerr therefore clearly appears to have
been a pupil of both these gentlemen — probably first
with Mr. Wilde the conveyancer, and afterwards with
Mr. Tarrant Harrison the pleader. Moreover, the
last named had at that time in his chambers a lad of
the name of George Mitchell. Some few years later
Kerr, having become Judge of the Sheriff's Court of
London, and always anxious to do justice to a
deserving friend whom he considered to merit it, got
this lad, who had meanwhile risen to the position of
a barrister's clerk, an appointment in the Registrar's
Office at the Court. Mr. George Mitchell, the
respected clerk to the Registrar, thus rose to his
present position under Kerr's auspices. He remained
with his old patron until the latter's retirement in
1901 ; and while the latter served the City for over

17 c

Commissioner Kerr

forty years, Mr. Mitchell has been an officer of the
City of London Court for nearly that time.

A now almost forgotten Mr. Harrison, who, from
his initials, was some years ago known to the Bar as
" Alphabet " Harrison, used for more than a quarter of
a century to frequently sit as the late Commissioner's
deputy. He must not be confused with the Commis-
sioner's old master. His name was O. B. C. (Octavius
Baxter Cameron) Harrison, but he was a son of one
John Orton Harrison, and not (as has been some-
times erroneously supposed) a son of the Commis-
sioner's old master in the Law. He was well known
to lawyers, having been one of the authors of Har-
rison and Rutherford s Reports, and the author of a
book on The Practice of the Sheriff's Court.

In Hilary Term (January), 1848, the name of
1 ' Robert Malcolm Kerr" appears amongst those of
"Gentlemen called to the Bar" by Lincoln's Inn in
that term. A notice of Kerr's call to the English
Bar was contained in the Glasgow Herald 'as follows:—

ENGLISH BAR. — In the Globe of Friday last we observe that
among several gentlemen called to the Bar by the Hon. Society of
Lincoln's Inn is one of our townsmen, Robert Malcolm Kerr, Esq.,
who was admitted a few years ago a member of the Scottish Bar,
and distinguished himself on several occasions in the Circuit Courts
of Glasgow and the neighbouring counties, as well as in our
Ecclesiastical Courts. We shall be glad to learn that in the wider
field of labour he has chosen to attain the distinction which his
appearance in our Scottish Courts seemed to entitle him to claim.

About ten years after his call Kerr, for the purpose
of more readily obtaining Chambers in the Temple,
was admitted ad eundem as a barrister at the Middle

18

Called to the English Bar

Temple, like his friend the late Lord Russell of
Killowen, who did precisely what Kerr had done
before him. Both doubtless had alike found that it
is inconvenient to a member of the Common Law
Bar not to have Chambers in the Temple, and access
to a library to one of the Inns of Court which lies
near. Unlike Lord Russell, however, Kerr, after his
admission to it, always regarded the Middle Temple
as now his " Alma Mater " in the Law, and at one
period would have liked to become a Bencher there.
When, in 1899, Mr. Macrory, K.C., was treasurer,
the Commissioner, having largely distributed his
objects of interest among museums and libraries,
though he himself would not have cared at that time
for the honour of being a Bencher, but finding that
the writer possessed that distinction, through him,
presented to the Bench of the Middle Temple a most
interesting collection of photographs of past legal
celebrities, most of whom had been his personal
friends. He was formally thanked for doing this by
a resolution of the Benchers, which was communicated
to him by the Sub-Treasurer.

The same year as saw Kerr's call to the Bar also,
within about six months afterwards, saw his marriage.
With his father's many political friends, and also the
numerous literary ones of his mother's family, we may be
sure that the young Scotch barrister had not been al-
lowed to come to London without plenty of introduc-
tions. Amongst others to whom he had introductions
was the well-known philanthropist and reformer, the
late Matthew Davenport Hill, Recorder of Birming-
ham. Hill was a frequent correspondent and a

19

Commissioner Kerr

political friend of Mr. John Kerr, the father of the
late Commissioner ; and numerous letters from him
are amongst the letters and correspondence, of which
a list is given in Kerr of Kerr stand. Matthew
Davenport Hill had, too, says the Commissioner,
assisted in obtaining for the city of Glasgow the very
best representative in Parliament it ever had, the late
Lord William Bentinck. That an introduction to
Matthew Davenport Hill was not only given, but was
used, is evident from the fact that when, two years
after his call to the English Bar, Kerr became a
candidate for the office of a Common Pleader in the
City, and his only testimonials were from Hill and from
the two masters with whom he had read as a pupil,
the Recorder of Birmingham was then able to say of
him, " I have known you long." This testimonial is
set out in full later on (p. 28 post}. It is dated from
44, Chancery Lane, in March, 1850, and not only
expressly says that the writer has known Kerr long,
but implies that he or his has known him pretty well,
since it declares that he feels " assured that you will
fill the duties of the appointment with credit to your-
self and satisfaction to every member of the Corporation
who may have been induced to give you his vote."

Matthew Davenport Hill was like Mr. John Kerr,
one of the earliest members of the Reform Club.
So also was the late well-known Charles Knight, at
that time one of the best known literary men of the
day. Knight was alike an author, an editor, and
himself a publisher. He was the " Knight " whom
Douglas Jerrold, on quitting one evening, wittily
referred to as " Good Knight." Hill had assisted him

20

Called to the English Bar

in his literary labours, and it was Knight who, on
Hill's death, wrote the latter's obituary notice. The
ways in which Knight was connected with literature
are so many that it is not entirely easy to say of what
works he was the author, of what editor, and of what
publisher. His earliest literary work had been a
remarkable one. He was the son of a bookseller and
local newspaper proprietor at Windsor, who had been
mayor of that town. A relative by whom Charles
Knight had been largely brought up, and from whom
he doubtless derived literary and classical tastes, was
the Rev. James Hampton (1778), a Yorkshire rector
known to scholars as the first translator of Polybius,
his translation of which went through no less than
six editions. Charles Knight's father, a Windsor
bookseller, had once " picked up" at an auction an
imperfect copy of the comparatively rare First Folio
of Shakespeare. Young Charles Knight restored
it by printing the missing pages with type of
seventeenth century character on the fly-leaves of
seventeenth century books, so that both type and
paper matched the rest of the folio. Not only did
the restored work sell for a good sum, but what
is more important, his success attracted Charles
Knight to undertake more literary work. He, at
subsequent dates, became the author of Shakespeare's
Biography, Studies of Shakespeare, and a Pictorial
Shakespeare. Other well-known works with which
his name is connected are the well-known Popular
History of England, of which he was the writer ; A
Pictorial Bible ; and Knights Penny Encyclopedia,
afterwards re-published in 1853-61 as The English

21

Commissioner Kerr

Cyclopedia. Lord Brougham had taken the chair at a
dinner given in celebration of the completion of the
original issue of the work. In 1835 Knight, doubtless
by the influence of Brougham, Hill, and other political
friends, obtained the appointment of publisher to the
Board of Trade. In January, 1896, the portrait in
oils of Charles Knight was presented by the Com-
missioner to the Mitchell Gallery at Glasgow.

Charles Knight had, in 1814, married a lady who
was the second daughter of an architect, settled in
London, who was one of the two sons of a Devonian,
and bore the good old Devonshire name of Vinni-
combe. She had borne him a family of eight
children — three sons and five daughters. Such, then,
was the family to whom Kerr was introduced while
yet a student for the English Bar — possibly by
Matthew Davenport Hill, though it matters little
by which of the mutual literary and political friends the
introduction was given. Six months after her young
Scotch admirer had been called to the English Bar,
namely in August, 1848, he married Maria, fourth
child and third daughter of Charles Knight. The
lady was about two years her husband's junior.
The Commissioner, to the last, retained the greatest
affection for her. She died in May, 1884, after which
he was seldom seen in society. As a result of this
marriage, five children were born — four sons and a
daughter. The two elder sons died before their
father, but two of the sons and the daughter survived
him. The writer of these lines is indebted to them
for having freely placed at his disposal the ample
materials for this imperfect memoir of a distinguished

22

Called to the English Bar

father, for whom those friends, who had the privilege
of really knowing him, must ever retain the greatest
esteem and regard.

It may not be out of place to here mention, in
passing, a remarkable instance of the robust indepen-
dence of the opinions formed by the Commissioner.
So closely connected was he with one who was no
mean Shakesperian scholar, that he might naturally
have been expected to be an orthodox holder of the
Shakesperian faith. The present writer has, on the
other hand, ever since he began to study the evidence l
on the subject, regarded it in the light in which it
presents itself to most trained lawyers. He has felt
that one who dares to form his conclusions by the light
of facts, however much they may be against certain
popular beliefs, cannot doubt that Lord Bacon was the
real author of the plays published under the pseu-
donym of " Shakespeare." The very name did not
exist until, by the aid of the Promus (or Common
Place Book) found some years ago at Northumberland
House amongst Lord Bacon's papers, we can actually
see Bacon in the act of manufacturing it. Lord
Bacon was probably prompted to adopt a nom de
plume by the fact that — though many young men
secretly did so — it was in his day generally considered
a disreputable thing to write for the stage, particularly
for money. He also had some special personal
reasons of his own for keeping what he did secret,
inasmuch as his mother was a strict Puritan, and
accordingly hated "stage plays"; and he was him-
self ambitious of holding high office in the State.
1 See remarks near end of chapter on pp. 24-5.
23

Commissioner Kerr

Though he held these views, the writer was delicate
about confessing — even to so intimate a friend as
the Commissioner — that his mind was possessed by
what most people regard heretical doubts about the
" orthodox " Shakesperian faith. One day, however,
in consequence of a casual remark which had dropped
in conversation, he ventured to hint his views gently.
To his amazement, there came the immediate answer,
given with the Commissioner's usual emphatic decision
and promptness, that he " had nae dolibt about it."
He then proceeded, with his accustomed clearness,
to express a very decided view substantially identical
with that timidly advanced by the present writer,
that, while the cypher theory is not worth serious
argument, the many scores, or as some would say,
hundreds of literary parallelisms alone offer ground
for the gravest suspicion ; and almost positive proof is
afforded by the combination of the above facts with the
further singular coincidences that the plays, taken in
the chronological order of their production, refer to
incidents in the life of Bacon's own life and not in
that of Shakespeare ; that the order in which these
plays appeared is also the order in which such
incidents occurred in Bacon's life ; that not only
incidents in Bacon's life, but subjects which he was
known to be studying (such as the action of the
winds which is shown in the "Tempest") are repro-
duced in the plays though they were not such as we
know Shakespeare to have been acquainted with ;
and that the appearances of the plays vary with
Bacon's known fortunes, being comparatively rare
when he is busy, but frequent when his fortunes are

24

Called to the English Bar

known to be at a low ebb. Both agreed in opinion
that all these coincidences taken together form a
tremendously strong body of circumstantial evidence ;
and that such a chain of evidence cannot be broken
either by Shakesperians declining to argue, either,
as some urge, on the ground that " I never read
the other side " ; or, as others do, by discussing the
point with as great an apparent theological hatred
for opponents as though it were a polemical ques-
tion of doctrine which had arisen in the early ages
of the Church. The Commissioner concluded, " I
don't know what my good father-in-law Knight would
have said to me, for the question had not arisen in
his day. Betterton, the actor, an hundred years after
they first came out, had recognised the genius in the
plays ; jumped without evidence to the conclusion that
the stage-manager who brought them out was the
writer, because his name sounded the same as that
given as the name of the writer, though spelt differently ;
and so gathered a lot of personal gossip about him
without getting any proof at all of his authorship ; and
that's exactly what the Shakesperians have been going
adoing ever since. But Knight was a sensible man."
Within a year after Kerr's marriage an eldest son was
born (July 18, 1849), who afterwards entered the army,
proceeded to India with his regiment, and within
fifteen months of his arrival there, died (May 15, 1871)
at Meerut, where his brother officers erected a monu-
ment to his memory. All Kerr's other four children
were born before the end of 1858, and consequently
before he was appointed to the position he held till
his death.

25

CHAPTER III.

KERR'S EARLY PROFESSIONAL PURSUITS — SEEKS A CITY

OFFICE — CIRCUIT LIFE EXPERIENCES AS A DEPUTY

COUNTY COURT JUDGE PROFESSIONAL PUBLI-
CATIONS.

WITH a rapidly increasing family springing up
about him, we may be sure that Kerr was not
neglectful of any stray guineas which he might obtain
an opportunity of earning. Early life at the bar is
for most men but a trying time of waiting for busi-
ness ; and we have no evidence that it was anything
else in Kerr's case. His means too were narrow.

In 1850, and within eighteen months after Kerr's
marriage, he first sought a City appointment. This
was the office of a City Pleader. Probably very few
of the general public of to-day have the smallest
idea of who and what a City Pleader was. Even
amongst professional lawyers such knowledge is grow-
ing scarce. The meaning of the term must there-
fore be explained in some detail. After the Norman
Conquest, the City retained its own courts, as dis-
tinguished from the King's courts at Westminster ; and
it was a privilege of the freemen of the City that they
could only be impleaded in the City Courts. The
City Courts were the Court of Hustings, the Mayor's
Court, and the Courts of the two Sheriffs. All

26

Early Professional Pursuits

suitors in these courts had to " make " (or appoint)
"their Common Pleaders." The citizens of London
appointed four attorneys to be their " Common
Pleaders." In time it came to pass that no one
could have a case tried in a City Court without
these Common Pleaders being all employed. A party
who chose to do so could, indeed, employ his own
" Attorney out of court," but the attorney so employed
had to instruct one of the Common Pleaders to repre-
sent the client in court. For the Common Pleaders
had an exclusive right of audience just like that
which, till the end of the reign of William IV., the
Serjeants possessed in the Court of Common Pleas at
Westminster. The Second Report of the Municipal
Corporation Commissioners, made in 1837, describes
the rights of the Common Pleaders in the following
language : —

The Pleaders have the right of practising as Barristers in the
Mayor's Court and the Court of Hustings, and if any counsel be
retained for a cause depending there, who is not one of the four
Pleaders (even if he be the Common-Serjeant), it is a rule in these
courts that each of the four Pleaders must have a Brief on one side
or the other. The foreign counsel are seldom introduced except
when the case is of an unusual kind in respect of the amount or the
nature of the question. Cases of compensation are often led by
foreign counsel. The Corporation, in such cases, usually employ for
themselves the Common-Serjeant and the two senior Common
Pleaders.

The fees taken by the Common Pleaders were, it
should be noticed, small in amount. The number of
such fees, and the possession of a monopoly, made the
office of " Common Pleader " a valuable one.

To become a Common Pleader was an object of

27

Commissioner Kerr

Mr. Kerr's ambition in 1850. We find preserved
amongst his papers the address seeking the office
which he issued. It is of interest, as recording the
first introduction to the Corporation of an energetic
Scotsman, destined in after years to be a faithful City
servant for a period approaching half a century. In
it Kerr states the fact that he had "little connection
with the Corporation," as he afterwards also said in his
application for the judgeship of the City Sheriff's
Court.

The testimonials accompanying this application
threw light upon a period of Kerr's life, of which
comparatively little is known. Of three only, one was
from Mr. M. D. Hill, and the remaining two from
Mr. Wilde, the Conveyancer, and Mr. Harrison, the
Special Pleader, in whose respective chambers
Mr. Kerr has already (p. 17 ante) been stated to have
been a pupil, on the authority of the internal evidence
contained in these documents. For this reason, and
not because they at all differ in any particular respect
from testimonials of the character in question generally,
they may be set out here :—

From M. D. Hill, Esq., Recorder of Birmingham.

44, CHANCERY LANE, March 20, 1850.

MY DEAR SIR, — If any testimonial of mine can be useful to you
in your intended canvass for the office of City Pleader, you are
heartily welcome to it. I have known you long, and I feel assured
that you will fill the duties of the appointment with credit to yourself
and satisfaction to every member of the Corporation who may have
been induced to give you his vote.

Believe me, dear Sir,

Your faithful servant,

M. D. HILL.
R. M. Kerr, Esq., &c.

28

Early Professional Pursuits

From E. Tarrant Harrison, Esq., Pump Court, Temple.

TEMPLE, March 19, 1850.

MY DEAR SIR, — I am much gratified to hear that you are a
candidate for the vacant office of a City Pleader. I have had con-
siderable opportunity whilst you were with me as a pupil, and since,
of judging of your abilities and attainments as a lawyer, and I feel
great pleasure in having the opportunity afforded me of testifying my
full conviction of your fitness in every way for the office which you
aspire to.

I shall rejoice to hear of your success and

Believe me ever to remain, my dear Sir,
Yours very truly,

E. TARRANT HARRISON.
R. Malcom Kerr, Esq.

From S. F. T. Wilde, Esq., Barrister-at-Law.

10, SERJEANT'S INN, March 20, 1850.

MY DEAR SIR, — However desirable it may be in theory that
candidates for official situations should produce testimonials of their
ability to fill them in practice it is useless, for documents of their
nature rarely if ever have any weight with those for whose guidance
they are intended, their complimentary character being too well
understood to render them of any value. If, however, you still wish
for any expression of my sentiments as to your capacity to fill the
office of Common Pleader of the City of London for which you are
a candidate, I must not in justice to you withhold it, for during the
time you were in my chambers, and since you have left them, I have
had the fullest opportunity of ascertaining the extent of your legal
acquirements, and I am so well satisfied as to your perfect com-
petency to discharge the duties of the appointment which you seek
not only with credit to yourself, but with advantage to the public,
that I am very anxious that you should obtain it ; and I shall not
only be glad to hear of your success, but shall be most happy to
promote it by any and every means in my power.

Believe me, my dear Sir,

Ever very faithfully yours,

SAMUEL F. T. WILDE.
Robert Malcolm Kerr, Esq.

The candidature of Mr. Robert Malcolm Kerr for
the office of " Common Pleader " cannot be exactly

29

Commissioner Kerr

said to have been unsuccessful. The Corporation
took the opportunity of a vacancy to begin to abolish
the office, and decided not to fill this vacancy ; con-
sequently the office never fell to the lot either of Kerr
or any of his competitors. The few testimonials he
obtained in support of his application, and the absence
of any evidence in the numerous papers which would
be preserved, goes to show that he made no very
special effort to obtain the appointment for which he
was nominally a candidate, and makes one shrewdly
suspect that the candidature was in truth only what
he would have called " a bold advertisement,"
designed to make him known, and perhaps to serve
some ulterior purpose.

In the following year (1851) Kerr commenced to
act as a Deputy County Court Judge. He.first did
so for Mr. Arthur James Johns, then the Judge of
a Welsh County Court Circuit, comprising the towns
of Corwen, Bala, Dolgelly, Machynlleth, and Aberyst-
with. His first appointment so to act is carefully
preserved amongst Kerr's papers, and is signed by
Mr. Johns, and dated July n, 1851. A subsequent
appointment, similarly preserved, is dated September
6, 1851 ; and so also is one by Mr. John Herbert
Koe, the Judge of Circuit No. 38, which bears date
July 14, 1856.

The law as to the appointment of a deputy by a
County Court Judge was, at that time, rather different
from what it now is. Then, the deputy appointed was
only required to be a barrister of " three years' stand-
ing." The qualification now required is that the
person appointed deputy shall be of at least seven

30

Early Professional Pursuits

years' standing. On the other hand, a deputy can
now act without any previous approval by the Lord
Chancellor or otherwise, provided he possess the
qualification of being of the necessary standing at
the Bar (seven years), now required by statute
(The County Courts Act, 1888). His appointment
must, however, be at once reported to the Lord
Chancellor. In 1850-6, a deputy could not act except
with the express approval of the Lord Chancellor,
signified before he did so. Accordingly, Kerr's two
first appointments as Deputy County Court Judge
were signed as "approved by Truro C.," and the
third one as " approved by Cran worth C."

Newspaper cuttings, containing reports extracted
from the Welsh newspapers of cases tried before him
when sitting as Deputy Judge in "The New County
Courts " have been carefully preserved by Mr Kerr.
County Court cases do not seem to have, at that time,
very much differed from the ordinary run of cases
now tried in country County Courts. The newspaper
reports are criticised in the following characteristic
note : " Reports — but exceedingly incorrect ones —
from the Bangor and Carnarvon newspapers, of the
Courts of September, 1852. The reports may do for
the public, but a lawyer would look aghast at them."

Amongst the cases which Deputy Judge Kerr had
to try in the summer of 1851, and on the occasion of
his first acting as a Deputy County Court Judge, was
however one of Rees v. Williams. He refused to
try it, as a writ of certiorari to remove it into that
Court had been issued by the Court of Exchequer, and
he considered that the writ was good. Subsequently,

Commissioner Kerr

early in the following Michaelmas Term, a notice to
set aside the certiorari, on the ground that it was on
the face of it bad, for certain technical reasons, was
made by the late Mr. Morgan Lloyd. The Court
however, thought that, on the face of it, the certiorari
was valid, thus confirming the view which Deputy
Judge Kerr had taken of it in the previous July. A
newspaper report of Mr. Morgan Lloyd's motion, and
of its rejection, was preserved by the Judge, prefaced
by the following note —

The subjoined extract refers to a case which was entered for trial
at Dolgelly in July, 1851. The objection to the return was taken,
and I was asked to go on and try the cause, as there had been the
expense of the summons, but declined. The Ex. had jurisdiction
to issue the writ. This, therefore, the first of my judgments sub-
mitted to a Court of Appeal has been confirmed. I cut the extract
from a newspaper I met with accidentally. — R. M. K.

The report to which the above note is a preface is
as follows : —

In the Exchequer of Pleas Nov. 4 (1851).

Rees v. Williams — In this case a certiorari has been obtained by
the defendant to remove the proceedings from the Merionethshire
County Court to the Court of Exchequer on the ground that difficult
questions of law were likely to arise in the trial of the case.

Mr. Morgan Lloyd now moved to quash the certiorari on two
grounds —

i st. — That the plaint was entered to recover the unliquidated
balance of a partnership account.

2nd. — That the affidavit on which the certiorari was granted did
not disclose sufficient grounds for the removal of the plaint.

JUDGMENT.

B. PARKE — If the plaint had been really for the unliquidated
balance of a partnership account this Court would have quashed the
certiorari. But the plaint discloses a liquidated demand and

32

Early Professional Pursuits

appears on the face of it therefore such as this Court has juris-
diction to entertain. If the Plaintiffs demand be really an unliqui-
dated partnership demand, his course will be to abandon the present
plaint, and to enter a fresh plaint in the County Court describing
his demand as an unliquidated balance of a partnership account.
If he does so, we shall not remove such a plaint. In the present
instance the Plaintiff has described his cause of action as a common
law demand over which the Court has jurisdiction.

B. ALDERSON — If the Plaintiff will enter a fresh plaint, which he,
may, describing his demand as an unliquidated partnership claim,
we shall not grant a certiorari. I am not so sure, however, that a
Court of Equity will not.

C. B. POLLOCK — As to the other point, we cannot try on affidavits,
whether points of law are likely to arise at the trial. The defen-
dant's attorney has sworn that such would be the case, and that that
is a sufficient ground of removal. If it had appeared on the plaint
that the claim was an equitable demand we would have quashed the
certiorari. The form of the plaint has misled the defendant.

Rule refused.

The administration of justice by Kerr as Deputy
Judge appears to have given satisfaction. For we
find such notices as the following : —

DOLGELLY.

The County Court was held at Dolgelly on Saturday last. There
were very few cases, the general rule being in this place that four-
fifths of the causes are settled before hearing, one of the strongest
proofs that could be offered (were proof wanting), not only of the
satisfactory administration of justice in our local courts, to which we
have so often referred, but of the confidence with which these tri-
bunals have inspired alike plaintiffs and defendants, the latter
knowing well that no crochets in pleading, or suppression of
evidence, will enable them to contest successfully against a just
demand. (Carnarvon and Denbigh Herald and North Wales
Advertiser, October 18, 1851.}

BALA.

This Court was held at Bala on the i3th instant, Mr. Kerr sitting
as Judge.

33 D

Commissioner Kerr

A Plaintiff in an action for goods sold to the amount of £21 odd,
failing to make out a case in compliance with the Statute of Frauds,
the defendant's interest being watched by Mr. Royle of Bala, the
cause was adjourned to the next court for the production of further
evidence, the Judge considerately explaining to the plaintiff who
did not speak or understand English, what would be necessary to
be proved in order to proceed in his suit.

Our correspondent in reference to the above says —
I would ask how many of your readers and how many of the
tradesmen of North Wales are acquainted with the provisions of
the Statute of Frauds. And further, I would ask those of your
readers, who know anything of the practice of the Superior Courts,
whether they ever heard of a case being adjourned there only
that justice might be done. To this fact we may pledge ourselves :
that had the suitor at Bala failed to make out his case at West-
minster, as he did last week at his own door, he would have been
nonsuited in an instant, and have found himself saddled with ^50
or ;£6o, with the satisfaction of beginning a fresh action if he were
insane enough to venture a second time into Westminster for £20.

That others, as well as Deputy Judge Kerr himself,
were satisfied with the way in which he discharged
his duties, is shown by other evidence than the
extract from the Carnarvon and Denbigh Herald of
November 8, 1851, which is given above. A question
of some importance as to the law between an outgoing
and an incoming tenant, with reference to crops, had
been tried before him in the Corwen County Court.
He had reserved his judgment. The case excited
considerable local interest, the newspaper reported
the proceedings at the Court at which it arose as

follows : —

NEW COUNTY COURTS.

Before R. M. Kerr, Esq., Barrister at-Law.

CORWEN.

The Court was held at Corwen on the gth inst. by Robert
Malcolm Kerr, Esq., Barrister-at-Law.

34

Early Professional Pursuits

The only cases that gave variety to the proceedings were two.
. . . The second case was one, the decision in which will not only
regulate the judgment in other cases, but will be of some importance
to many of the farmers in the parish of Corwen.

Hugh Hugh Hughes sued E. H. Phillips for the half value of the
tenth of the wheat crop of a farm which the plaintiff had surrendered
to the defendant at Lady Day last. It was and is still a custom in
that part of the country for the outgoing tenant to have one-half of
the grain crop, the incoming tenant being entitled to the other
half. Previously to the tithes of Corwen being commuted into
rent-charge there was no difficulty about this division, which took
place after the parson had taken his tithes. In the present case the
defendant being liable for the rent-charge, had taken the tithes as
the parson would have done, and had then divided the remaining
nine-tenths with the plaintiff. The plaintiff offered to pay to the
defendant one-half of the proportion of the rent-charge of the land
in crop. The proportion of rent-charge of which the plaintiff
offered to pay half bore the same proportion to the rent-charge of
the whole farm as the ground which had been cropped bore to the
whole extent of the farm. In the present case it amounted to
barely one-third of the half-value of the tithe of grain which had
been taken by the defendant. The plaintiff now contended that
the tithes being commuted into a rent-charge, on payment by him
of the proportion he had offered, the whole crop ought to have been
divided equally. As it had not been so divided, and as the
defendant had abstracted one-tenth, the plaintiff claimed to be
entitled to recover one-half of the value of the tenth so abstracted.

The case of the plaintiff was ably argued at some length by
Mr. John Jones, his Attorney, and as the parties were nearly agreed
as to the facts on the recommendation of the Court, certain formal
amendments were made in the proceedings, and the parties made
mutual admissions so as to enable the Judge to decide the point at
issue on a case agreed upon by them, which his Honour care-
fully read over for their approval. As the decision, however, affected
other cases before the Court, and might be of interest, and possibly
of importance, to many who had given up and entered into posses-
sion of farms on similar terms, the Judge reserved his decision till
the next Court.

We hope to be able to furnish our readers with the judgment in
question.

35

Commissioner Kerr

The newspaper from which the above report is
extracted was subsequently invited to express an
opinion on the merits of the cases which had raised
the question of farming rights. It, in a leading article,
declined to do so in terms which were very compli-
mentary to the Deputy Judge, and shows that he
was, even then, obtaining the confidence of the public.
It said: —

It must be left to the Judge of the Court as concerns the facts
and the law bearing on the case, but we cannot on the whole but
agree with Mr. Cooper's views.

That his Honour's final judgment will accurately decide the legal
question we have no doubt, Mr. Kerr's capacity for forming a
matured view being unquestionable ; and if that view be contrary
to the opinions of certain parties, still outgoing and incoming
tenants wishing to decide equally can make a special agreement so
to do.

There is, moreover, another special reason why our opinion should
not be sought, which is that the final judgment of the Court has
not been fully published, and cannot be given until our next
impression is worked off. The importance of the question raised
did not fail to strike us, but we are chary of volunteering observa-
tions on matters pending before the regular judges of the law.

It is enough for a journalist in such cases to aim at giving early
and correct reports, and this we have always striven to do despite of
cost, labour, and anxiety.

Our reporter will take care to secure the judgment on the Corwen
case at full length, and we have no doubt that it will prove satis-
factory to all reasonable persons, for Mr. Kerr's ideas of equity are
not drawn from a capricious notion of right, but are in collateral
dependence alike upon law and fact according to the sterling old
maxim of judicial notoriety, " Discernere per Legem quid fit
Justum."

A small trace of the Commissioner's activity outside
the usual run of such ordinary professional work, and
such as generally falls to the lot of a young barrister

36

Early Professional Pursuits

is that on July 17, 1852, at the election for Middle-
sex which took place that year, " Robert Malcolm
Kerr, of Pump Court, Temple, Esqre," was appointed
Deputy Sheriff " to preside at the taking of the poll
at the Mile End Polling Place." The occasion was
that of a General Election, one of those periodical
occurrences about which some words used by the
Saturday Review, in reviewing one of Kerr's books at
a time when it happened that the Parliament pre-
viously elected was being in its turn replaced by
another, may well be quoted, for they are as appli-
cable now as they were then.

The elections are over; we have reconstructed our legislative
machine, and wound it up to go for, perhaps, four or five years.
It is constructed very much like its predecessors, and what a
marvellous piece of mechanism it is, considering the work that it is
intended to do, and the manufacture that it actually turns out ! The
shopocrazy and the ploughocracy, the men who smirk behind
counters, and the men who speculate in beans, are the engineers
who put it together. The men who have no opinions at all, or, if
they have a fancy, it is a general taste for bloodshed, and an
a priori dislike of moderation — are the materials of which it is
composed. And the work it is set to do is to continue the woof,
woven through many centuries of the most refined, the subtlest,
and the most complicated science with which the mind of man is
conversant. And their mode of setting to work will be nearly as
eccentric as the system which brings them together. Nine-tenths
of them will never read the laws they pass. Nineteen-twentieths
will never understand them, and they will vote, not, it is needless
to say, on the merits of the case — for that their happy ignorance
renders impossible — but in furtherance of some party purpose, in
deference to some party leader, or some importunate constituent, or
in the fulfilment of that dutiful obedience which every Englishman
owes to the Tories. After having fought its way through this dense
mass of ignorance, every measure will have to run the gauntlet in
committee of a score of conflicting interests and crotchets, and then

37

Commissioner Kerr

maimed, battered, and transformed, it will take its place in the
time-honoured ranks of the English Law, so thoroughly obscure, so
perfectly divested of any unity or simplicity it may once have had,
that its promoters will wait in anxious curiosity till some litigant
brings it into Court, and a judicial decision has affixed to it a
meaning.

The same year, 1852, saw the first development of
Mr. Kerr's literary taste and ability. This, on both
his father's and his mother's side, must have been
inherent in Robert Malcolm Kerr. It was, doubtless,
also stimulated and encouraged by the family of his
wife. In 1852 also, as he himself states in his circular
addressed to the Lord Mayor, Aldermen, and Common
Council, on applying for the appointment of Judge
of the Sheriff's Court, he published an edition of the
First Common Law Procedure Act. This was the
first work which proceeded from his pen. The recep-
tion which it met with may be gathered from the
following reviews.

The Law Magazine and Review, in its issue of
November, 1852, said : " Mr. Kerr's is the best
edition we have yet seen of the Act for a correct
view of its practical effort and intent."

The Legal Observer said : —

In the introductory chapters to this work Mr. Kerr gives — ist. A
summary of the changes effected by the Act. 2nd. An elementary
view of an action at law under the new Procedure ; and 3rd. An
outline of the action of ejectment. This review of the scope and
effect of the Act is very ably written, and will be found of much
assistance to the practitioner in carrying the various provisions of
the Act into effect.

Said the Globe: " The introductory and illustrated
portions of the volume before us will be found exceed-
ingly useful under the new and untried Act."

38

Early Professional Pursuits

Another newspaper also favourably noticed the
work. It was said by the Examiner : " Mr. Kerr, in
a volume which we can heartily commend, prefaces
the Act with a clear and able introduction, and prints
it with practical notes between its clauses."

Satisfactory proof that these favourable reviews of
the young author's first book were something more
than the complimentary comments merely of over
friendly critics was furnished by the substantial facts,
which we may be sure were especially gratifying to
his thrifty nature. The first edition of the work was
exhausted in a fortnight, and in consequence a second
was at once called for. This also soon became simi-
larly exhausted, and like the first "out of print." His
book's success caused Mr. Kerr to be employed by his
publisher, Mr. Crockford (a then well-known publisher,
and carrying on business at 29, Essex Street, Strand),
to " settle " the Form of Warrant required under the
Absconding Debtors Arrest Act. The book probably
too, like other law books of a practical sort, brought its
author a considerable accession of business connected
with the matters with which it dealt.

Thus encouraged by the great success of his first
book, Kerr was not long in producing another. In
the following year (1853) he published An Action at
Law. The nature of the work may be gathered
from the reviews of it which appeared both in the
professional and in the non-legal journals.

The Legal Observer, in its issue of February 1 1 ,
1854, remarked :—

Mr. Kerr, who is favourably known in the profession for his
able edition of the Common Law Procedure Act, with very ample

39

Commissioner Kerr

Annotations, has rendered a further good service both to the practi-
tioner and to the student by the compilation of the present volume,
comprising an elementary and comprehensive view of the proceed-
ings in An Action at Law. The book will be peculiarly useful to
articled clerks preparing for examination, and especially to that
larger portion of them who have not had the advantage of a year's
experience in the office of a London Agent, or who have been
articled to solicitors whose chief business is that of conveyancing.
Nevertheless, they must acquire an adequate knowledge of the
jurisdiction and practice of the Common Law Courts, to entitle
them to a certificate that they are fit and capable to act as attorneys.
. . . Mr. Kerr has clearly and concisely traced the steps of an
action according to the altered form and course of proceeding
under the Common Law Statute of 1852, and the rules of Practice
and Pleading, framed in pursuance of its enactments. The author
has judiciously included in his work a review of the constitution of
the Superior Courts, and their jurisdiction in the redress of " private
injuries " according to the method and arrangement of Blackstone,
some of whose admirable language will be found in Mr. Kerr's
pages-
Other reviews of an equally flattering nature were
contained in many other papers. The general press
united with the professional legal papers in praises
of it. The general nature and scope of the work
can be sufficiently gathered from the one review
above set out. The reader would be wearied by
a reproduction here of others of the favourable
reviews which appeared of Kerr's first original
work.

The next important episode which occurred in
Kerr's life was that at the Summer Assizes for 1853
he formally joined the Northern Circuit.

At that date the old Circuit system still flourished
in full vigour. It maintained its authority chiefly by
means of the Circuit Mess, which is obviously alluded

40

Early Professional Pursuits

to by the author of the works known as " Shake-
peare's Plays " l in the remark —

Do as adversaries in law —

Strive mightily, but eat and drink as friends.2

On stated occasions, called " Grand Days," sham
Courts were usually held to try supposed offenders
against the traditionary discipline, regulating and main-
tained by " the Bar Mess " of a Circuit.

Kerr thus joined the Northern Circuit. Nowhere
was its organisation more perfect than it was on the
Northern Circuit. The Circuits kept up with a tight
hand, the then discipline and etiquette of the Bar.
But, if these were vigorously enforced, this was
always done in a good-humoured and sociable way.
Offenders against the " discipline " of the Bar, as it
prevailed on that particular Circuit, were usually dealt
with in a way really proportioned to the magnitude
of the offence which they had committed, and Cir-
cuit punishments largely consisted of fines of wine, or
of sums sufficient to pay for a small named amount
of it. If an offence were, as will sometimes occur, a
mere, almost accidental, violation of Circuit discipline,
it was well met and punished by the offender being
made to provide a slight quantity of wine, or of the
funds with which to purchase it. If it were of a
graver nature, and regarded by the Circuit to be
a grave breach of professional propriety, the offender

1 As to their authorship see also pp. 24-5.

2 Taming of the Shrew, Act I., Sc. 2. According to orthodox
Shakespearian believers, " pure genius " seems to have revealed to
the writer an intimate knowledge of the habits and inner life of
the Bar on Circuit.

41

Commissioner Kerr

might even be punished by total exclusion from the
" Mess " of his Circuit. Sometimes, indeed, both this
extreme penalty, and even lighter ones, were not
inflicted with entire discretion. Thus, in this very
Northern Circuit, the Bar Mess once expelled from it
a leader, the late Mr. Wedderburn, K.C., who, like
the " Jackdaw of Rheims," was not one whit the worse,
continued to flourish, notwithstanding that this ban of
excommunication had been imposed upon him, and
that other members of the Circuit with one excep-
tion only refused to hold briefs with him. Mr.
Wedderburn eventually became Lord High Chan-
cellor of England, with the title of Lord Lough-
borough ! He then repaid the loyalty of the one
man who had been faithful to him by creating him
a Judge.

The Mess of a Circuit was, however, principally
concerned with imposing fines for small (so-called)
offences, such as travelling in a public conveyance,
when that mode of journeying still remained unrecog-
nised by the Circuits ; or lodging in a forbidden part
of an Assize town ; or, when railways had grown to be
allowed, travelling second class ; or entering the coffee-
room of an hotel. For the Bar are great sticklers for
tradition, and wont to impose a penalty on any
member of the Circuit Mess who violates tradition.
Mrs. Partington and her celebrated mop are some-
times rivalled by the Decrees of Circuit Bar Mess.
In the old coaching days, for instance, it was forbidden
to travel by public conveyance, such as stage coach,
each member of the Circuit had to "ride it" on his
own or a hired horse, or to "travel it " in his own or

42

Early Professional Pursuits

a borrowed carriage. Again, for some time after
the introduction of railways, the prohibition against
travelling by a public conveyance was still kept alive.
When, at last, a concession was so far made to general
convenience and public taste as to tolerate Railways
as a mode of travel, it was only on the condition that
a member of the Bar who " took rail " shall invariably
travel in a first-class carriage. At this day even, a
Barrister who should communicate with several of his
own clients by typewritten duplicate letters would not
improbably find himself convicted by his Mess of the
heinous Bar offence of having " issued a Circular " !
If circumstances (e.g., the removal of his chambers and
consequent change of address) should compel him to
make the same fact known to several amongst his
clients, the etiquette of some Circuits would demand
that he should address each separately, as the labour-
saving device of modern days of writing a single letter
to one addressee and having it duplicated would be
probably held to amount to " issuing a Circular," which
no Barrister is allowed to do. Strictness has, too,
been long exercised, moreover, with regard to a Bar-
rister's lodgings. Thus, in one case within the writer's
knowledge, Barristers were only permitted to stay
on a certain side of a certain bridge. There was only
one hotel of a good class on the proper side of the
bridge, and about 1 50 yards from it. The accommoda-
tion at the command of the Bar was consequently very
limited. One day, however, the Leader of the Circuit,
a somewhat masterful man, arrived in the town late,
to find no rooms at his disposal. He raved and
stormed, and finally took a suite of rooms at an excel-

43

Commissioner Kerr

lent hotel about fifty yards on the wrong side of the
bridge. The " Circuit Rule " was at once altered, and
the hotel " on the proper side of the bridge " hence-
forth no longer enjoyed a monopoly. The writer
himself was once not so fortunate. Arriving one
winter's night at the little town of Dorchester by the
last train, he found not a lodging to be had in the
whole town, a heavy snow-storm coming on, and no
other train leaving that evening for Weymouth, which
was the nearest and only habitable town at hand.
Under these circumstances he bethought himself of
the Registrar of the County Court, who was both a
personal friend of his own, and an old schoolfellow of
his father's. He was there kindly received, and enter-
tained till next morning. But what had taken place
was soon discovered. The Registrar, alas, was a soli-
citor, and actually had a heavy case in Court next day,
to take a part in which the teller of this present terrible
tale against himself had come down from London.
In this he duly appeared the next day as Junior on
the other side, a position he had occupied for many
months previously. But some one "laid an information "
against him with the Circuit Court (the informants in
such cases are always anonymous), with the result that
the offence was visited with a " fine " of £i. The
penalty was, of course, exacted and duly paid.

Many of the fines for " Circuit offences " were, in
reality, complimentary fines. Thus, a fine was inflicted
on a man who " went Special " to another Circuit, or
to a Sessions other than one to which he had regularly
attached himself. So it also was on a man who ob-
tained an appointment on the Circuit of a substantial

44

Early Professional Pursuits

and permanent nature, such as a Recordership, or the
office of a Revising Barrister. Above all, a fine was
inflicted on any man who got married, for was not such
a thing in itself a confession of prosperity earned by
acquiring many fees, of which other men on the Circuit
must have been deprived ?

While inflicting a fine on a member for such a con-
fession of prosperity as getting married impliedly
admitted, it is but fair to the old Circuit system to
add that, in the case of a popular member, the com-
paratively small fine imposed on an offender in this
respect was sometimes much more than made up to
him by many of the members of his Circuit uniting
together, and presenting him with a handsome wedding-
present.

Indeed, the entire Circuit system of old, properly
understood and worked, was a pleasant way, on the
whole, of enforcing the discipline of the Bar, and of
preventing the commission of grave offences against
its discipline by calling prompt attention to even small
deviations from it. The Circuit system also had the
great advantage of making the different leading advo-
cates at the Bar know one another to a nicety, and thus
led to causes being conducted on each side with an
honour and a courtesy which left nothing to be desired.

The functions of the old " Circuit Messes " are
now to a large extent exercised by the Bar Council,
some of whose members, others complain, are a little
inclined sometimes to take themselves too seriously,
and to use the Nasmyth hammer of that powerful
body for the purpose of cracking nuts !

It must, however, be confessed that there were,

45

Commissioner Kerr

even in the old days of the Circuits, on every Circuit
just a few men a little too prone to regard small
grievances in (to continue the " nut " simile) the cap-
tious spirit of the man who complained that another
was continually insulting him, because the offender
constantly cracked nuts in his presence though, as he
knew perfectly well that the aggrieved one had hazel
eyes, he must be aware that this was personally
offensive, and so only do it by way of insult ! Still,
on the whole, the old system worked pleasantly and
well, and maintained the tone of the Bar by a mixture
of good-humoured " chaff" with punctilious discipline.
Mr. Macrory, K.C., who was the " Junior" (in
reality the executive officer) of the Northern Circuit,
at the time when Kerr joined it in 1853, is one of the
few members of the Circuit of that time who still
survive. He describes the Commissioner's connection
with the Circuit as follows : —

19, PEMBRIDGE SQUARE, W., December 6, 1902.
MY DEAR PITT-LEWIS, — I have been torturing my brain and
memory ever since the receipt of your letter to try and recollect
any circumstance in the life on the Circuit (the Northern Circuit)
of Commissioner Kerr, which would be useful to you in your work,
or that would interest the public — and without success in getting
much. He was not very long on the Circuit, for he joined (if my
memory serves me) while I was junior of the Circuit that was the
Summer Circuit of 1853, and you know already the date of his
appointment in the City. But I know that his great love of justice
was proved by a very small matter in the life of Circuit of the
insignificant member who is addressing you. He remarked during
the Circuit of 1854 that I had not a red bag,1 and he asked me why

1 The possession of a " red bag " is, or at any rate was formerly,
in the old days when Circuit discipline was rigorously enforced, a
special privilege. An ordinary Barrister's bag is blue^ and no one

Circuit Life

I had not one. I told him that no one among the leaders of the
Circuit had as yet thought me worthy of the distinction, when he at
once remarked, " Why you are in a much better position than many
who have had a red bag bestowed on them. I'll see to it." And he
did see to it, with the result that before the end of that Circuit
(summer 1854) a red bag was sent me by one of the leaders. A
feather often shows which way the wind blew, and this shows how
even in a small matter justice was his prevailing idea, or rather his
guiding star. I cannot recollect whether it was to him or to
Blackburn, afterwards Lord Blackburn, that the Circuit attached the
name of " The Walking General Issue." I think it was to Blackburn,
— of whom it was said he would get up in the middle of the night
and contradict the Temple watchman proclaiming the hour of the
night, or would contradict a weather cock. Kerr never held any
office on the Circuit for, as I have said above, he was not long
enough on Circuit to hold office. I am sorry I cannot help you
more than I have done, and if these small contributions are of any
use to you I am glad to send them.

I think your title is one which will be attractive, viz. : "Com-
missioner Kerr : an Individuality."

Believe me, dear Pitt-Lewis,

Yours very sincerely,

E. MACRORY.

Truth to tell, on the one side a man of Kerr's cast
of mind would take little interest in what he would
probably consider, in his younger days, as the mere
trivialities of the Circuit, though reflection in his

permitted to buy himself a red one. The only way in which a red
bag could be obtained was by a Leader sending one (supposed to be
his own) to a Junior whose ability had attracted his attention as a
delicate compliment, conveying that the recipient ought to be him-
self a Leader. Etiquette required the gratified Junior thus receiving
a red bag to present the Leader's clerk with a guinea to replace the
one which his master had thus generously bestowed upon another.
As the price of a new red bag would only be about 35. 6d. the
Leader's clerk was generally as gratified at being empowered by his
master to present a red bag as a Junior was at the receipt of one.

47

Commissioner Kerr

more mature years would make him perceive that
these things were really serving a useful purpose.
On the other hand, it must be allowed that he was
not personally popular with the Circuit. While a
great Circuit generally, as a body, takes a generous
view of the successes of its members, there are usually
some men on it, at all events, of a supercilious nature,
ready to exhibit in an unpleasant way personal
jealousy. What may be called the " seamy side " of
Bar life, as well as its most agreeable one, may be
best seen on Circuit. Sometimes men of the hazel-
eyed character just described succeed in giving a tone
for a time to the whole Circuit, and for the moment
invest a too successful competitor with an unpopularity
which he does not deserve. This they usually do by
fastening upon him the charge of being ready to do,
if even he has not actually done, something which
they proclaim is a great professional offence. Kerr
had been successful with his publications, and was
fortunate in getting employed in an important case
soon after he had joined the Circuit. He thus soon
became of sufficient importance to attract the envy
and ill-will of such persons as are before described.
Accordingly, a story was started that Kerr was a
person ready to accept smaller fees than the usages
of the profession permitted. This, in a sense, was
true. The o€ice of a City Pleader was paid by
small fees, and by becoming a candidate for it, not-
withstanding he knew that its income was derived
from a number of small fees, lower in amount even
than those generally paid to "Pleaders under the Bar,"
he had, in a sense, sanctioned them. It should here

Circuit Life

be explained that gentlemen practising "under" the
Bar, not having been called to the Bar (there were
both Special Pleaders and Conveyancers practising
"under" the Bar), were permitted, till a period well
within the author's memory, to accept as small a fee
as 73. 6d. or even 53., and this was thought enough.
But though no one could ever say with truth — much
less prove — that Kerr had ever accepted a lower fee
than a Barrister could take with perfect professional
propriety, yet, said those of the " hazel eyes " tempera-
ment, his willingness to accept an office paid by these
small fees was sufficient proof of the "mala mens"
and of a readiness to offend when opportunity
presented itself for conveniently so doing !

That Kerr was somewhat unpopular cannot, then,
be denied. Indeed, stories are still to be met with
as to how he was, more than once, attacked by a
notorious person on the Circuit. This individual
was a well-known pleader who, having been a Special
Pleader " under the Bar," had been duly called to
the Bar. We may be sure that he, at least, had
never afterwards failed to exact the full fees which
his professional position as a Barrister now entitled
him. This worthy was by some thought to add
force to his language by its habitual foulness and
coarseness. So we hear that on one occasion,
in the presence of several men he observed,
without rebuke to Kerr, who was discussing some
matter in which the Circuit was interested, though he
himself had none, " There you are, Kerr, buzzing
around and concerning yourself with everybody's
business like a slaughterhouse fly" He, on another

49 E

Commissioner Kerr

occasion, however, did not himself scruple to go
out of his way to interpose in a matter in which
he was not concerned. For he insultingly remarked
to Kerr, again in the hearing of others, when the
latter, long after appointment, was engaged in one
of his many disputes with the City : "I hear that
the Corporation will soon kick your dirty carcass out
of that office under them which you've got hold of."
The words " slaughterhouse " and " carcass " as above
used are, it may be added, a reproduction of the
choice language actually employed with what the old
Pleaders pleasantly termed " a variance," to make
them proper for decent print.

Kerr's connection with the Northern Circuit, though
intimate, was not destined to be long. It had not in
his case the results which have with many followed
their becoming members of the great Circuit which
long shared with the Western the distinction of being
pre-eminent amongst the Circuits. In old days, the
Circuits were a far more important element in the
country than they have now become. Downwards
from the reign of Henry I. all the important cases,
civil and criminal alike, were in each county tried at
the Assizes held at its city town. Travelling was not
then easy, and this alone was sufficient to prevent
cases of importance being, as they now usually are,
taken up to London to be tried. In many instances,
such as disputes about land, or as to rights claimed in
connection with it, the plaintiff in old days and up to
about 1870 had, by law, no choice at all except a claim
as to where he would have his case tried. The place
for trial, or " venue," as it was technically termed,

50

Circuit Life

was, by law, " local," that is to say, the case was
obliged to be tried in the Assizes for the county in
which the land was situated.

The common law itself was exactly the same on
all the Circuits, but the practice varied on different
Circuits. For instance, there exists " authority" for
saying that matters which would be received as
evidence upon one Circuit would not be evidence
at all upon another.1

Possibly, Kerr was induced to join the Northern
Circuit in the summer of 1853 by a literally " shell-
fish" reason. For on the County Court Circuit in North
Wales, a locally very important case arose involving
the right to an oyster fishery in the Menai Straits.
This was tried at the following (1854) Liverpool
Spring Assizes. In it Mr. Serjeant Wilkins appeared,
"Mr. Kerr" with him as counsel for the plaintiff.
Mr. Kerr, no doubt, " opened " the Pleadings, and
the result of the case probably provided him with the
wherewithal to " open " many oysters during the
remainder of that season and long afterwards. The
case, too, had a sort of ecclesiastical flavour about it.
For the event of the action depended upon the right
of the Bishop of Bangor, when following the occupa-
tion of the Apostles, to exclusively fish for oysters alike

1 Legal authority for this statement can be found in a case of
Morewood v. Wood (1792) where Buller, J., said that the " practice "
as to the reception of a certain class of evidence " is different in
different Circuits." The late Mr. John William Smith reports this
in a MS. note of the case published by him in a note to a leading
case of Didsbury v. Thomas formerly contained in his leading cases
at p. 401 of the 1856 edition.

51

Commissioner Kerr

on the deep waters of the Menai Straits as well as
at the weirs there. The jury found (i) that the
Bishop's right was confined to the weirs, and did
not extend to the waters ; (2) that the fishermen (one
of whom was the plaintiff, who sued for having been
arrested on a charge of stealing oysters from the place
in question) went for the purpose of asserting their
right, and not to despoil the plaintiffs property ;
(3) that the defendant had no ground to believe, and
did not believe, that he had a right in the deep
waters. This was unquestionably a verdict for the
plaintiff, or for Mr. Kerr's side, on the question of
right, and would, in any case, have entitled his client
to the costs of the issues on such questions of right,
which formed the main, and doubtless the most expen-
sive, issues in the cause. The damages were assessed
at £$o with a further £6 gs. for the oysters which had
been seized ; such verdict being, however, subject to a
question of law raised by the counsel for the defendant.
This point, Mr. Baron Platt, the judge who presided
at the trial, said they might appeal to the Court in
London about, " if they thought proper."

There is no trace of any such appeal having been
ever brought. Probably, the defendant's counsel did
not " think proper " to carry the case any further, and
felt that they were hopelessly beaten. For their
"point" was that the defendant was protected by an
Act of Parliament from having any action brought
against him till after he had previously received notice
of action. But the Act they relied upon only pro-
tected people who had acted on some right which
they either really had, or honestly believe on some

52

Circuit Life

solid ground that they possess. The jury had, how-
ever, found that the defendant did not really believe
he possessed the right which he had boldly asserted.
No wonder, then, seeing this, and also that the costs
of the trial of the question of right would, in any case,
fall upon their client, the able and very learned
counsel, of whom the " leader" was Mr. Watson,
afterwards Baron Watson, did not " think proper" to
further fight the case ! In those days, actions were
generally really won or lost long before they ever got
into court, as much by the tact and learning of the
junior counsel for the party who eventually succeeded
as they were on their merits. Cases, being well
prepared, did not then occupy the inordinate time in
court which a "big " case now takes. A trial was a
long one which lasted a couple of days, as this did,
the trial having occupied a certain Monday and
Tuesday. So the case was a considerable triumph
for " Mr. Kerr," the plaintiffs junior counsel. Indeed,
a trained lawyer can see the skilful hand of the junior
counsel at work throughout it, and gradually leading
up to the triumph for the plaintiff which was eventu-
ally won. Let us hope that this case, while, as has
been stated, it probably furnished Mr. Kerr with
many oysters during the rest of that oyster season,
and much longer also, was not an instance of the
fulfilment of his well-known views as to the avaricious-
ness of lawyers ; and trust that the oysters of the
Menai Straits were not divided with the clients after
the fashion in which it is traditionally said that the
legal profession usually " makes partition " of these
good things with its clients!

53

Commissioner Kerr

The case is an excellent example of conduct of a
kind which is common even to this day. A man with
a long purse usurps a right, and with audacious con-
fidence in the power of money, but also well knowing
that he has no other ground for it, boldly and loudly
asserts " his right ; " well aware that though he
possesses none, probably no one will ever be bold
enough to challenge the Goliath armed with golden
weapons. It was for the cause of justice and right
for the poor, against the oppression of the rich,
that Kerr fought throughout life with fierce fervour.
We may be sure that his heart was in the battle
which, with learning and ability, he eventually won
for the poor fishermen of the Menai Straits.

The Carnarvon and Denbigh Herald, in its issue
of March 25, 1854, commented on the case and its
result in words which it must be feared, are in some
instances as true now as when they were penned
nearly half a century ago. It said —

Time immemorial, the Nimrods of the soil have created and
increased their possessions by usurpation and though, in modern
days, law has put a sort of limit to their powers of aggression, it has
not been able to disarm. The disposition is to aggress. . . . What
yesterday was usurpation to-day becomes "possession." To-morrow
it is " property," and the next day it is pleaded as a precedent and
cited as an example."

The year 1854 was a busy one with Kerr. Pre-
viously to his great Oyster Fishery case, tried at
the Spring Assizes in March 1854, he had in the
February of that year, and again later on in the
same year discharged the duties of a Deputy County

54

Deputy County Court Judge

Court Judge. This last time, however, he went Circuit
No. 38, then known as "The Home Circuit, " and com-
prising the towns of Bishop Stortford, Chesham, High
Wycombe, Uxbridge, Watford, Hitchin, Waltham
Abbey, Hertford, St. Albans, Barnet, Edmonton, and
Luton. The Judge who was then Judge of this
County Court Circuit, and for whom Kerr accord-
ingly acted as Deputy, was the late Judge John Henry
Koe, Q.C.

No case of note appears to have come before Kerr
for trial on this occasion of his acting as Deputy
County Court Judge. At all events, none is recorded
as worthy of notice, in the voluminous notes and
memoranda which it was his practice to keep.

In connection with the arrangements for this County
Court Circuit, there may be noted, however, that the
notice of the holding of the different County Courts in
this Circuit was given in a form which provided suitors
in the Court with successful information, which any
one who has a practical acquaintance with County
Courts will see might still be given to them with great
advantage. Besides mentioning who the Judge, the
Registrar, and the High Bailiff at each place in that
County Court Circuit respectively were, and giving
their addresses, it also concisely stated what the
jurisdiction of the Court was, an i drew attention to
certain every-day points of practice, want of famili-
arity with which causes many a suitor to come unpre-
pared in the respects thus named, and so is a prolific
cause of adjournments, with all their attendant expense.
The jurisdiction of the County Courts, as it then
existed (for in the present day it is somewhat more

55

Commissioner Kerr

extensive than formerly), was thus concisely, but
accurately, stated (in 1854) in the terms following :—

The Courts have jurisdiction in actions of debt, and for legacies,
and shares of intestates estates not exceeding ^50, for damages not
exceeding £$o in tort, and for assault, trespass, and breach of
contract or agreement expressed or implied; and in actions of
replevin and ejectment for recovering possession of houses and
lands where the yearly rent does not exceed ,£50 ; and by consent
of the parties, in action for the recovery of debts, damages, and
demands exceeding ,£50 ; and by the like consent in actions wherein
the title to any land, Tithe Toll, Market Fair, or other Franchise
shall be in question.

Attention is directed to the points of practice just
referred to by a " Note " which was, at that time,
perfectly full and accurate (though it would have to
be now slightly modified) ; which ran as follows : —

NOTE. — The summons must be issued in the district where the
defendant or one of the defendants dwells or carries on his business
at the time the action is brought, in any other case it must be by
leave of the court. The plaintiff on entering plaint must state the
name, place of abode, and description of the party, and the amount,
or particulars, of his account or claim, and, if his account or claim
exceeds £2, he must leave at the clerk's office two copies of the
particulars. Summonses for debts not exceeding £$o, which must
be served ten clear days before the Court day, may be obtained at
the offices of the several clerks every day between the hours of ten
and four.

N.B. — When the plaintiff claims a book debt he must bring his
day book or other books of account with him to the Court.

In the same year, too (1854), which saw Kerr's
great triumph in the " Oyster Case " of the Menai
Straits, yet another "Common Law Procedure Act"
was passed. His success in the annotation of previous

56

Legal Publications

Procedure Acts, of course, encouraged him to under-
take an edition of the new Act, and the booksellers
who deal in the publication of legal works were
naturally ready to accept further productions from
the pen of one already so successful as an author.

Accordingly, before the Common Law Procedure
Act, 1854, was actually passed (as it afterwards was,
with a direction that it should come into force on
October 24, 1854), Kerr set to work upon annotating
it. We who have lived to see the changes subsequently
effected by " The Judicature Act, 1870," in full opera-
tion, will be, even if not lawyers, interested to note
the various sweeping changes, as they were then
thought to be, made by the Common Law Procedure
Act of 1854. The principal of these were enumerated
in a review of the work contained in the Morning
Advertiser.

Great was the revolution thought to be which per-
mitted a Common Law cause to be tried by a Judge
alone, without a jury. Chancery cases had for cen-
turies been so tried ; in fact, the services of a jury
were never made use of in the Chancery Courts.
Nine years before the passing of this Common
Law Procedure Act of 1854, the County Courts
Act of 1845 had provided that, in these new County
Courts, all cases should be tried by the Judge alone,
unless one of the parties demanded a jury — thus
making a trial by the Judge alone the regular pro-
cedure of the new Courts, and trial by jury the
exceptional one. The experiment had succeeded, and
the change was popular. Again : bold innovations
on our Common Law of the first magnitude were

57

Commissioner Kerr

in 1854 thought to be made by the borrowing from
Courts of Equity, which had long been used to send
matters of complicated detail to be ''reported on" to
them by a Chief Clerk, or by a person chosen by the
parties, of a system of Compulsory References ; by
the introduction from the Courts of Equity of a right
to administer interrogatories to an opponent, and to
obtain " Discovery of Documents " from him ; by the
adaptation from the Courts of the City of London
of the system of " foreign attachment " which had
prevailed in that city for centuries ; and by the
granting of a right to plead by way of an " equitable
plea " in a Court of Common Law, and as a matter
of defence, something that would be unanswerable
perhaps " in Equity," and on the other side of
Westminster Hall, but at which the Courts of
Common Law had hitherto refused ever to look.

The general Press, and not only the legal one,
accordingly took much interest in the legal reforms
effected by the legislation of 1854. A long and
elaborate review of Mr. Kerr's edition of the
Common Law Procedure Act of 1854 appeared
in the Morning Advertiser. It, after enumerating
in some detail the changes which the Act had made
in practice and procedure, concluded thus :

On the whole this is one of the most important administrative
statutes which have been passed for many years, and we recommend
not only all practitioners, but any one desirous of understanding the
objects and effect of the statute, to read Mr. Kerr's able and useful
book. His introduction clearly points out in detail, under different
heads, the evils intended to be remedied, and the mode adopted for
that purpose ; and we cordially echo the hope with which he con-
cludes the introduction, in the words of the Common Law Commis-

58

Legal Publications

sioners, that the statute will "be the means of saving vexation,
expense, and delay, and conduce generally to a better observance
of justice, by adding to the speed and facility with which it can be
enforced." Mr. Kerr's useful notes on the various sections of the
Act will render his work valuable to the practitioner.

The Globe, just sixty years ago the vigorous evening
paper which it is still, and the Britannia, whose reign
in literature is now over, both also very favourably
reviewed the new edition of the important Common
Law Procedure Act. This Act gave two judges
(the late Mr. Justice Sir Edward Shaw Willes and
Mr. Baron Bramwell) seats on the Bench of the
superior Courts, and his edition of it no doubt con-
tributed a little to Kerr's some years later obtaining
the judgeship of the Sheriff's Court.

One legal newspaper, the Jiirist, noticed with
disapproval two matters on which Mr. Kerr, in his
annotations on the Act, had expressed views which
were characteristic of him, and in later years often fell
from him in the City of London Court.

As every one knows, he hated long or numerous
speeches from counsel during a case. This dislike
found expression, even in 1854. For, in a note to his
edition of the Common Law Procedure Act of 1854
(to Sec. 1 8), he said that, in his opinion, the right to
a further speech conferred by it was only given where
cases were tried with a jury, and did not exist where
the trial took place before a judge without a jury. It
was considered by the Jurist that, in view of the first
Section of the Act, Mr. Kerr's contention was not
sustainable.

A second point on which the Jurist disapproved

59

Commissioner Kerr

of Mr. Kerr's views was this. His dislike to the
" piling up of unnecessary costs " was again and again
expressed in later years in severe and caustic terms by
the Judge of the City of London Court. Even within
the recollection of the present writer, the manner in
which arbitrations before a Barrister were conducted
left much to be desired — from the client's point of
view. Sittings were often needlessly numerous, and
held for short periods, at times when it suited the con-
venience of each of the counsel to have a sitting ; and
they were frequently adjourned to suit the mere con-
venience of one of the counsel, and on other grounds
which would be now considered entirely inadequate.
The result was that " arbitrations " were long and
costly ; instead of, as is now, happily, the general
course, being held in a businesslike fashion, and
when once commenced, regularly gone on with, day
after day, without interruption, until completed. Kerr
saw in 1854 all the evils of the old system, which was
then flourishing to its fullest extent. He commented
upon it in terms which, in the opinion of the Jurist,
" cast a grave and sweeping imputation upon his pro-
fessional brethren." That paper expressed its " regret "
at Kerr's remarks, and maintained, "in direct contra-
diction to Mr. Kerr," that "references to lawyers"
were even then — as they certainly are to-day — very
"satisfactory" — as to the legal profession they doubt-
less were !

In the autumn of 1854 Kerr again acted as Deputy
County Court Judge on the Welsh Circuit. He acted
in that capacity at Llangefni, Pwllheli, and at Bangor,
Carnarvon, and Conway. Nothing of general interest

60

Lectures for Law Society

transpired on this occasion, except an incident at
Bangor, which shows that Kerr's views in 1854 about
commitments upon judgment summonses were the
same as those which, in later years, and indeed
down to the time of his retirement, he repeatedly
and habitually on every fitting opportunity gave
expression to in the City of London Court. From
a Welsh newspaper is extracted the following speaking
report of what it is said that the Deputy County
Court Judge — who must have been a strong Judge
even as a deputy — remarked, in September, 1854.
His words will have a strangely-familiar ring in the
ears of those who frequented his Court in the City
of London forty years later.

BANGOR COUNTY COURT, SEPT. 2 2ND, BEFORE R. M. KERR, ESQ.

His Honour said he was not satisfied with the meagre information
the plaintiff had given respecting the defendant's circumstances, and
the summons must therefore be dismissed. His Honour further
observed that there was a great outcry in the country upon the
facility with which commitments are obtained on these summonses,
and by and by there would be all kinds of letters in the Times about
County Court judges, as there were now about clerical magistrates.
It was a monstrous thing to commit men in this way without
adequate inquiry, and he did not think the system ought to be
encouraged. The plaintiff ought to be prepared to satisfy him
(the judge) that the defendant had the means of paying, but, for
all he could tell, he might have been sued in half-a-dozen other
cases."

His editions of the Common Law Procedure Act
must have attracted the notice of the profession to
the ability of their writer. At all events, he in
July of that year received a letter from the then
Secretary of the Incorporated Law Society requesting

61

Commissioner Kerr

him to undertake to deliver a course of lectures
for it.

To this letter, which evidently much gratified him,
he at once replied as follows : —

i, ELM COURT, TEMPLE, July 27, 1855.

SIR, — To the unsolicited mark of confidence, with which the
Council of the Incorporated Law Society have honoured me, I
cannot reply otherwise than by accepting their invitation.

I trust that my endeavours to justify that confidence will meet
with their approval.

I remain, Sir, your most obedient servant,

R. MALCOLM KERR.

R. Maugham, Esq., Secretary to the Incorporated Law Society,
U.K.

The lectures delivered in pursuance of the invita-
tion of the Society's winter session of 1855 comprised
much the same subjects as a good Common Law
lecturer then would select to instruct his students
upon.

In the July (1856) following Kerr sat as Deputy
for His Honour Judge Koe on Circuit No. 38 (see
page 55 ante] with the written approval, as on the
former occasion, and given by, in the same form as
before, Lord Chancellor Cran worth. In December,
1856, Kerr again took his County Court as Deputy
for Judge Johnes. The description given by a local
paper of the proceedings at one of the Courts may be
applied to all : " The number of plaints issued was a
full average number. Many of them were arranged
before the hearing. Those tried presented no feature
of public interest."

Some of the cases at other places were indeed locally

62

LL.D. Degree

reported, but the reports fully bear out thestatement
extracted above.

In the winter of 1856, and the spring of 1857, Kerr
again gave a course of lectures for that body in the
Hall of the Incorporated Law Society. On these
the same remarks may be made as on his previous
course.

For the course of lectures delivered by him Mr. Kerr
received the following vote of thanks from the Incor-
porated Law Society : —

INCORPORATED LAW SOCIETY, U.K.

CHANCERY LANE, LONDON.

At a Meeting of the Council Thursday, May 27, 1858.
Resolved, That the Council of the Incorporated Law Society of
the United Kingdom have much satisfaction in acknowledging
the learning and ability evinced by Robert Malcolm Kerr, Esquire,
in the several courses of lectures on Common Law and Criminal
Law delivered by him in the Hall of the Institution in the years
1855, 1856, 1857.

These lectures extended over five months — viz.,
from early in November till the end of April, while
they were in progress, and early in the year 1857 Kerr
had received the following most gratifying communi-
cation from his old University : —

GLASGOW COLLEGE, January 16, 1857.

SIR, — I have the pleasure to inform you that at their Meeting
yesterday, the Senate of this University conferred on you the degree
of LL.D.

Allow me to congratulate you on having obtained so honorable
and well merited a distinction.

I am, Sir, your obedient servant,

DANIEL H. -WEIR.
Robert Malcolm Kerr, Esq., LL.D."

63

Commissioner Kerr

The newspapers of his native town naturally noticed
with satisfaction the honour due to their townsman.

The Glasgow Post in its issue for the next day,
remarked : —

GLASGOW, January 17, 1857.

We observe that the Senate of the University of Glasgow on
Thursday conferred the Degree of LL.D. on Robert Malcolm Kerr,
Esq., Barrister- at-Law, London. In doing so we think that our
worthy professors have shown unquestionable discernment, with
good taste ; for, while Mr. Kerr's success and position at the English
Bar entitle him to the distinction, the fact of his being educated at
Glasgow College adds grace to the honour conferred on him by this
learned body.

The Glasgow Citizen in its next issue said : —

On Thursday the Senate of the University of Glasgow conferred
the degree of LL.D. on Robert Malcolm Kerr, Esq., Barrister-at-
Law, London — a mark of distinction from his Alma mater which we
regard as alike honourable to the Professor who bestowed it, and to its
able recipient. Mr. Kerr is a native of Glasgow, and is now pursuing
a successful career at the English Bar, where he has distinguished
himself beyond many of his contemporaries, and where his talents
will doubtless be duly appreciated and rewarded.

Appropriately enough, the first use which Kerr
made of his newly-acquired degree of " Doctor," was
to prefix it to his name, as the editor of a book
which proved to be the magnum opus of his life, and
that by which he will probably be remembered by the
lawyers of future generations so long as this evil
world continues to indulge in lawyers. He had long
been preparing an edition of the Great Blackstone.
This he now published.

By it he, as remarked by the Examiner, added
" his name for some years to come at least to Black-

64

Kerr's Blackstone

stone's, in these volumes of English Law, as Smollett
added his to Hume's by the continuation of an
English History."

The principle upon which he had edited Blackstone
is best explained in the words of a review of a contem-
porary date. The Press said : —

The editor, Dr. Malcolm Kerr, is not afraid to take the field after
the elaborate and learned labours of his immediate predecessors.
Dr. Kerr's plan is simple. He gives the text of Blackstone with
little alteration, making such additions to the various parts as are
required by the altered state of the law. The matter contributed by
the editor is distinguished by inverted commas, and thus the
methodical arrangement of Blackstone is preserved while necessary
additions are made. Dr. Kerr has conscientiously performed his
duties ; his Blackstone seems to us about as good as a Blackstone
can be made.

We need not dwell upon the various courses which the different
editors have pursued — some have left the text of Blackstone entire
and added notes of the alterations in the law, others have subjoined
notes upon those notes. Some have contented themselves with
daily stating the changes that have occurred, while others go more
largely into questions of politics and economy, in which latter cases
it often happens that while Blackstone is too apt to tell us that
" whatever is is right," the editor inclines to the opinion that what-
ever is is wrong, and the effect is a kind of Russian bath for the mind
which, hurried from one (extreme to the other, becomes impatient
and seeks some milder treatment. Others have adapted Black-
stone's text to modern law, some boldly, some timidly, while the
arrangement of the subject has been altered by at least one editor to
what appeared to him a more scientific distribution.

The review above set out is selected to be given
at length because it best tells the principle on which
the magnum opus of Kerr's life was written.
Numerous other reviews of it appeared, however, in
other well-known papers. Indeed, there was hardly

65 F

Commissioner Kerr

a paper of position and of weight and influence in
which it was not fully noticed.

The Athen&um (of March 21, 1857) contained a
review extending to no less than three columns,
explaining the plan on which the work was written,
and commenting favourably upon it. It proceeded,
" So much for the plan of this adoption. Of its execu-
tion we can speak in terms almost as favourable."
The review then went on to discuss the execution
of Kerr's plan in considerable detail. While remark-
ing that the writer's language was " not always
accurate, and seldom graceful," it said that even those
portions of the work on which it made this criticism,
showed " great care and accuracy." It selected as
particularly deserving of tTiFs~~cTescription, and as
" admirable," Kerr's annotation of a Joint Stock
Companies Act, which it referred to as " The
wondrous Act of last session," said was " distin-
guished from most other statutes by the fact that
no one ever pretends to understand it " ; and con-
cluded the exhaustive review by saying that the
notes were " interesting and not oppressive," and
remarking, " We can strongly recommend this edition
as a student's book.1'

The Spectator said that the plan laid down had
been executed "clearly and closely, with nothing of
hiatus or jar" ; and that the book was "very hand-
some, and will form, at all events, the country gentle-
man's edition of Blackstone."

The Economist (April 25, 1857) pointed out that
the plan pursued by the editor might be *' learnt from
a passage in his sensible and judicious preface " ;

66

Kerr's Blackstone

thought it to be " one of the best modes of dealing "
with Blackstone ; and that the editor had " done his
work with considerable judgment, and with a most
creditable superiority to the temptation of unnecessary
personal intrusion ; " and, recognising that there was
also " much silent editorial work in it," concluded by
" sincerely " recommending the work to its readers,
both professional and unprofessional.

The Saturday Review (April 18, 1857) recognised
the importance of the work by giving it a review
extending to over two columns. After commencing
with the passage set out already on a previous page of
this chapter,1 it made some comments upon the style
of Mr. Warren, the author of Ten Thousand a Year,
who had also annotated Blackstone, but in a way which
the reviewer thought betrayed that " a man who has
written such novels is apt to have an ignominious
apprehension of being dull." Mr. Kerr, it remarked,
was not open to any charge of being fearful of being
thought dull, for his dulness, it said, showed him to
be " fully alive to the dangers of a literary reputation ; "
and it went on to assure him that he " made himself
perfectly secure," since it thought that "the most
captious attorney can find no treasonable homage to
the Muses in his style." It admitted, however, that,
''these literary defects apart, Mr. Kerr's edition
deserves commendation for the extreme fidelity with
which Blackstone is reproduced." The whole review,
as will be seen from these extracts, was an excellent
specimen of the " slashing " reviews, accompanied by

1 See ante, p. 37.
67

Commissioner Kerr

not a little minute criticism of small details, which was
characteristic of the " Saturday Re viler " of those days,
and is much beloved of not a few.

The legal professional organs also reviewed the
work. The most unfavourable of these reviews was
that which appeared in the Solicitors Journal (June
6, 1857), in which both Blackstone himself, and the
plan of editing his work adopted by Kerr were dis-
paraged, and Kerr's literary style severely criticised ;
though it was added that Kerr "appears to have
laboured at his task with great industry, and we are
bound to admit that, so far as we can discover, the
law has been accurately brought down to the present
time."

The Guardian, the well-known organ of the English
Church, thought the edition Mr. Kerr had published
" not only the newest but the best," and likely to be
" for some time to come," the standard edition of
Blackstone.

On the other hand, the Tablet newspaper, the
recognised organ of the Roman Catholic Church,
published a series of long articles (four in number)
which were entitled " Blackstone's Fallacies." These,
while making the publication of Kerr's Blackstone
the occasion for severe criticism upon the original
author, spoke of the editor and his work with
no unkindness, and were, in their own words, "less
a censure than a criticism, so far as Mr. Kerr is
concerned ; we tell him frankly that if he had less
reverence for his author, and more reliance on himself,
he would have done better work."

The interest and attention attracted to Kerr's

68

Kerr's Blackstone

edition of Blackstone was not confined to this side
of the Irish Channel. It was favourably noticed in
Dublin, as well as in England and Scotland, alike by
the general press, and by the recognised organs of
the legal profession.

Amongst others, the Dublin Review (a Roman
Catholic magazine) thought it would have been well
" if Mr. Kerr had dealt with his author more boldly,"
but added that his additions to the text by way of
notes were " useful and judicious, while his corrections
are marked by such good sense as to leave nothing to
wish, except that they were more frequent."

The Irish Jurist, a recognised organ representative
of the Irish Bar, said that Kerr's Blackstone was
"most carefully executed, and the additions of the
author * judiciously interwoven with the original,"
and that the work as a whole was "excellent."

It is remarkable that, while the writers of the above
reviews look at Blackstone from varying points of
view, all practically agree that, short of writing a new
Blackstone, Mr. Kerr had done the best for the classic
commentator that can be effected, and even hostile
critics admitted the accuracy of his "Law" in the
notes added by him to Blackstone. Some of the
writers of the above critiques openly wish for a new
Blackstone. Others do not regard Blackstone with
the almost superstitious reverence which some affect
for that writer. Others, again, express recognition of
the unique position held by Blackstone's Commen-
taries. Sometimes even those who wish a new Black-

1 An evident Hibernicism for " editor."

Commissioner Kerr

stone admit that there is in many such minds " a
Divinity that doth hedge Sir Wm. Blackstone."

In the autumn of the year (1857) in which he had
brought out his now classical legal work Dr. Kerr
again acted as deputy for Judge Johnes on the North
Wales County Court Circuit. Nothing very remark-
able occurred during this Circuit ; even the incidents
in an action tried before him at Cardiff in an action
by a Welsh solicitor called by the common Welsh
name of " Williams " against a person of the wonderful
name of "Jerome Green Jones Green Pym ap Edny-
fed" are not so. It is, however, worth noticing that
Kerr, no mean lawyer, during this Circuit gave a
definition of "When an election begins" that may
be found useful in cases where more modern express
definitions do not apply. He said : " An election
does not begin until there are two or more parties
seeking the suffrages of the electors. . . . An elec-
tion means a choice between two or more parties."

During the time when Mr. Kerr was acting as
deputy for Judge Johnes in the autumn of 1857 a
curious incident happened. The late Commissioner,
when Judge of the City of London Court, rarely, if
ever, sent a witness for trial on a charge of perjury.
It is the habit, indeed, of most experienced County
Court Judges to hardly ever do this. No doubt a
great deal of untruth is told, and much exaggeration
takes place, in County Courts. Occasionally, too, it
may happen that wilful and deliberate mis-statements
of fact are purposely made. It is, indeed, obvious
that wilful falsehoods, when sworn to, are perjury,
and that this ought to be very severely punished when

70

As Deputy County Court Judge

proved — much more severely, indeed, in the writer's
humble opinion, than it usually is. But the majority
of the mis-statements made in County Courts, though
put forward on oath, do not really amount to " wilful
and corrupt" perjury. It is but human nature to take
a highly-coloured view in favour of one's own case
and to even persuade oneself, by continually brooding
over a matter, that something was said or done which,
in fact, never was. Many of the lower orders, in
particular, have this faculty of persuading themselves
that a thing happened which never really occurred at
all. Again, imagination often plays a great part in
these so-called " perjury " cases. For example, a
man sees an incident in an accident — in other words,
a part of it only. He persuades himself that he has
seen the whole of it, and a ready imagination supplies
the details he did not really see, but which he thinks
''must" have happened, and that he therefore "must"
have been seen. It is but a short stage further to half
believe that they really all did happen, and that his
eyes saw them occur. Arrived at this state of belief,
it needs no effort nor straining of conscience to go
into the witness-box and positively swear that the
deponent actually saw what he, in truth, has only
imagined.

Perhaps, however, Kerr's dislike to commit any one
for trial on a charge of wilful perjury, though it is a
dislike generally felt by all County Court Judges,
originally arose from his having, during this Circuit,
committed a party for perjury, and the Judge for
whom he was sitting as deputy having afterwards
similarly committed the other side ! Of course, in

Commissioner Kerr

such a case nothing could be done but that both
prosecutions should be withdrawn !

In the beginning of 1859 (January) Kerr again
acted as a Deputy County Court Judge ; on this
occasion, however, he was deputy for the County
Court Judge of a Circuit which then comprised
Daventry, Alcester, Coventry, Rugby, Solihull,
Southam, Stratford-on-Avon, Warwick, Bromsgrove,
Redditch, and Stourbridge. This was the last occa-
sion of his acting as " deputy." For, in a few months
subsequently, in the same year (viz., in March, 1859),
came the contest which resulted in his being himself
placed in a most important judicial position. The
story of this contest must, however, be reserved for
a new chapter.

MR. COMMISSIONER KERR, ALT. 73.

Painted by his son, Charles Kerr, 1894

To face page 73-

CHAPTER IV.

THE FIGHT FOR THE JUDGESHIP OF THE SHERIFF'S
COURT OF LONDON.

THE commencement of the year 1859 found
Dr. Robert Malcolm- Kerr, LL.D., now a man
who had grown into public notice and was well
known. He had, as we have seen in the preceding
chapter, brought out three books on the Common
Law Procedure Acts, which had each been favourably
received by his profession and had rapidly become
out of print. He had been on the popular side in
at least one important case tried at Assizes. He had
been a successful lecturer at the Incorporated Law
Society. He had had conferred on him by his old
Alma Mater, the University of Glasgow, the honorary
degree of LL.D. He had, within a few months of
its being bestowed, conspicuously justified the honour
done to him, and the wisdom of the University's action,
by editing with success an edition of a great legal
classic.

Professional promotion of some kind might be
justly expected to fall at no distant time to the lot
of a man with such an early career. Yet there are,
to this day, those who speak of him as though he

73

Commissioner Kerr

were still an obscure barrister who obtained his pro-
motion, when he got it, by a sort of " fluke " and by
adroitly, at the last moment, obtaining the disqualifi-
cation of his principal opponent. Their malicious
story is believed by many of the younger generation,
who give credit to those envious detractors. It there-
fore will be the business of this chapter to set the
true story of the contest for the City Judgeship fully
before the reader, and that, as far as possible, in the
words of contemporary journalism.

Early in the year 1859 the Judgeship of the
Sheriffs Court of the City of London fell vacant by
the death of Mr. Michael Prendergast, Q.C. This
gentleman was essentially a " City " man, and probably
owed his appointment to that fact, and to political
influence, rather than to any special aptitude which
he had ever shown for a judicial position. The work
of such a position in itself requires peculiar qualifica-
tions. To begin with, a man must be a thoroughly
good lawyer ; to go on with, he must, by nature,
possess an impartial mind, capable of seeing both
sides of a question and appreciating the full weight
of each. It is better, especially in these days when
many and long speeches are encouraged and the
legislature has, by its enactment, multiplied their
number, if he also possess considerable patience and
good temper. In such a Court, however, as that
which was the Sheriffs Court of London, and is now
the " City of London Court," the nature of the
business requires that the Judge must also be a man
of considerable energy and able to get through a
large amount of business with great despatch. The

74

The City Judgeship

union of all these qualities in one man is not common.
They do not necessarily exist because a man is a
relative of or friend of a great legal luminary, or is
otherwise highly connected, even though he come of
a famous legal stock or be a friend, or possibly even
a relative or connection of a Lord Chancellor. Still
less are they necessarily found in him because a man
himself is a successful advocate, who is probably the
more capable of enforcing his client's side of a ques-
tion, the more blind he is to the existence of any
merits at all on the other side. Mr. Michael Prender-
gast, Q.C., had certainly not been blessed with
many of the qualities needed by a good Judge.
Born in " Cloth Fair," somewhere towards the
end of the eighteenth century, he had been edu-
cated at Merchant Taylors School ; had proceeded
to Cambridge with the Parkyn Exhibition ; entered
at Pembroke College; obtained an LL.B. degree;
become a student of Lincoln's Inn ; and been there
in due course called to the Bar in 1820. His career
as a Barrister during the thirty-six years he was in
practice lay principally at the Old Bailey, and had
hardly been striking. He had been a member of the
Common Council of the City at one time ; had subse-
quently been appointed to be Recorder of Norwich,
and had been Chairman of a Bribery Commission,
appointed after the election of 1832, to inquire into
the doings of the old, and not immaculate, borough of
Barnstaple, mentioned by Hallam the historian as if
it were the nursery of the fine art of electoral corrup-
tion, practised in such a way as to avoid disfranchise-
ment. In later life (viz., in 1856) Mr. Prendergast

75

Commissioner Ken

had been appointed Judge of a Sheriff's Court of th(
City. As a Judge we are told that " his eccentricitie:
brought him into disfavour. But his judgments wen
marked by a righteous integrity, and it was seldon
that either a plaintiff or a defendant suffered by hii
peculiarities." After a short illness Mr. Prendergas
died at his residence at Highgate Rise on Sunday
March 19, 1859, at an age which was probably abou
sixty- two ; for men of University education are on ar
average about twenty-four years of age when " called,'
and he had been thirty-eight years a member of the
Bar.

The history of the Sheriffs Court, of which Mr
Prendergast had been, in 1856, chosen the sole Judge
is as follows : As every one knows, there are twc
Sheriffs for the shrievalty of the united jurisdiction
of London and Middlesex. In the "good old days,'
when to be in debt appears to have been generally
considered as a sort of crime, and accordingly sub-
jected the debtor to imprisonment, each of the twc
Sheriffs had a "Compter," or gaol, of his own. The
gaol of the senior Sheriff was the " Poultry " Compter,
while that of the junior Sheriff was the " Giltspur
Street" Compter. Even in those days prisoners for
some alleged debt, which was not yet proved, could not
be kept in gaol till the claim was tried. So the law
provided means for effecting proper arrangements on
which they might be meanwhile discharged. Judges
were attached to each of the " Compters," or " gaols,"
to see judicially that the proper procedure for an
alleged debtor obtaining release from imprisonment
preceding the debt, be it by giving security for the

76

The City Judgeship

debt, or what not, was duly followed. From this
origin the Court of a Sheriff everywhere grew to
be practically a Small Debts Court. That of the
Sheriffs of the City is thus described in the second
Report, made in 1837, by the Commissioners
appointed to inquire into municipal matters, at
p. 129:—

The Sheriffs Court is for all practical purposes divided into two
Courts, one department being under the superintendence of each of
the Sheriffs. In principle it is one Court holden separately at
different places before the two Sheriffs, and consistently with this
principle the style is " The Sheriffs' Court holden for the Poultry
Compter, London," or "The Sheriffs' Court holden for the Giltspur
Street Compter, London." It has been the invariable practice to
consider the Poultry Compter as belonging to the senior Sheriff and
the Giltspur Street Compter to the junior Sheriff, and the process in
each division accordingly issues in the name of the Sheriff to whom
that division is assigned. It is an ancient customary Court, and has
cognisance of actions of debt, and all other personal actions at
Common Law, arising within the City and its Liberties, and also of
actions, founded on the customs of London and acts of Common
Council. Ejectments appear to have been formerly tried in this
Court, but no instance of an ejectment has occurred there for many
years. It has no equitable or criminal jurisdiction. This Court is
not confined to any particular description of suitors, but is equally
open to Freemen and non-Freemen. The Sheriffs do not personally
preside in the Court, nor do they ever in fact attend, though all the
process issues in their names. Until lately, a separate Judge, or as
he is called in the formal admission, an " Under-Sheriff " was always
appointed to each division ; but a vacancy having occurred in the
office of Judge for the Poultry Compter, about two years ago, it has
not been filled up, in consequence of the intended improvements of
the Court and, at present, one Judge acts for both divisions.

By the Common Law, the patronage of the Judgeship
of its Courts belonged to the City. London had only

77

Commissioner Kerr

submitted to the Norman Conqueror upon the terms
that its customs and its privileges, in this and other
respects, should be respected and maintained. In 1 859,
the Corporation of the City, so far as concerned the
patronage of the City Judgeships, enjoyed these under
a statute (the London Small Debts Act, 1852), which
confirmed and continued those Common Law rights
of election. The same statute still regulates the
Constitution and Jurisdiction of the Court, so far as
they are not now governed (as it mostly now is) by
County Court Acts and Rules thereunder made for
the general regulation of County Courts. The Court
itself is, however, by another statute (the changed
name was first introduced by the County Court Act,
1867), now called " The City of London Court." The
right of the Corporation to appoint the Judges in it
was, however, taken away by a statute — the Local
Government Act, 1888 — passed under the auspices
of a Tory Government. It, with a singular incon-
sistency, took away from the Corporation of London
its ancient right to appoint to judicial offices, the
salaries of which are paid by the City, while it at the
same time expressly conferred the right to be magis-
trated upon the chairmen elected by the new County
Councils established in other places. Parliament there-
fore appears to have hardly made up its own mind
as to whether the appointment of Judges by popular
election is a good thing or a bad one. The question
has long been a vexed one. On this question, speak-
ing generally, Liberal opinion has, in England, usually
inclined somewhat towards trusting the people in this,
as well as in other matters, while Tory opinion has for

78

Judicial Patronage

the most part leant in an opposite direction. By the
American Constitution, Judges are elected, and need
not necessarily even be professional lawyers, so that
it stands recorded of one " Judge " that, after some
sufficient experience of the Bench to enable him to
definitely decide, he left it and returned to the more
congenial and more lucrative calling he had previously
followed — that of an umbrella maker ! !

Probably, as is usual in most cases, the truth lies
somewhere in the middle between the extreme view
on either side. On the one hand, it cannot be right
that either the appointment of a Judge, who, being
entrusted with the administration of justice, has almost
as sacred an office to fill as a clergyman, or that
of a vicar or rector, should be made by popular
election, conducted as at Common Law, with
the almost necessarily accompanying incidents of
bribery, intimidation, drunkenness, and every form of
debauchery. On the other hand, it can hardly be
doubted that the concentration of all the offices con-
nected with the administration of justice in the one
hand of one or even two party politicians — the Home
Secretary and the Lord Chancellor — is not desirable,
and might even, indeed, lead to grave constitutional
danger. The political partizan selected to have the
patronage of nearly all the judicial offices of the country
placed in his hands is, moreover, always the Lord
Chancellor of the day. Serious as may have been
the indiscretions of individual Aldermen and Common
Councillors, which will be presently pointed out, with
regard to a Judge whose appointment lay in the hands
of the Common Council, yet history shows that even

79

Commissioner Kerr

Lord Chancellors, as a body, have not themselves been
at all times free from well-merited reproach. Their
actions, too, have at times been governed by
actually corrupt motives, or by favouritism exercised
on behalf of political or personal friends, or even
members of their own families. Bacon, probably
the greatest of them, if not indeed the greatest
English intellect that has ever existed, was, whatever
the merits of the matter may have been, actually con-
demned of having polluted the sources of justice itself,
and accepted bribes for his decisions. Even if the
condemnation was unjust, as some think it to have
been, it is a striking proof of the inexpediency of
trusting power of practically unlimited amount to even
the greatest of human intellects. It is, again, not yet
two centuries ago that another Lord Chancellor was
condemned of actually selling or accepting bribes for
the bestowal of judicial appointments in his gift.
These grave offences formed the subjects of the im-
peachment of a Lord Chancellor in 1725. The unani-
mous judgment of ninety-three peers then convicted
Lord Macclesfield of having committed them, notwith-
standing that he was the personal favourite of the first
of our Hanoverian monarchs (George I.). The exist-
ence of the office of Accountant-General in Chancery
to this day remains a standing memorial to the
dishonesty of this Lord Chancellor, and to the
fact that Staffordshire in his day had the doubtful
honour, as it was said, of having been the native
county of the three biggest rogues of their day,
in the persons of Sheppard, Jonathan Wild, and
Lord Macclesfield ! Within living memory, Lord

80

Judicial Patronage

Chancellor Westbury was driven into resignation of
his high office by a condemnation by the House of
Commons, if not of personal bribery, yet of having
so habitually permitted family influences to dictate his
appointments that his power of making them had
been, sometimes, in violation of his high trust,
corruptly exercised by them. Complaints against
individual Chancellors that their powers of making
appointments committed to them on trust for the
public have been exercised by them in a manner sug-
gested by family influences, rather than by considera-
tion for the interests of the public, are, however,
groundless — indeed only too often current. Perhaps,
too, it is in the nature of things that Lord Chancellors,
being the successors of the clerics by whom their
high office was, in old days, always held, should
retain some characteristic traces of early Christianity ;
and that the one of these most conspicuous with
some of them should, in old days, have been the
scrupulous exactness with which they avoided falling
under the apostolic condemnation which declares
that he that provideth not for his own household
is worse than an infidel ! Apart, too, from these
considerations as to the probable personal weak-
nesses of individuals, professional politicians must
always of necessity be a dangerous class to whom to
entrust unlimited and unrestrained power. There ever
must be a great temptation to party organizers, on the
eve of, say, a critical division, to purchase a vote, if not
in vulgar cash, as in the days of Walpole (when,
notoriously, " every man had his price "), by pledging
the honour of the party that its power to bestow

81 G

Commissioner Kerr

some judicial office shall, at a future day, be exer-
cised in favour of the individual who shows his nice
sense of justice by bestowing his vote in support of the
cause which is claimed to have it entirely on its side !
The middle course which is probably the best one
for the satisfactory solution of the difficult question as
to how patronage should be conferred, is undoubtedly
that adopted as to the appointment of Recorder of
London by the Local Government Act of 1888. This
is that a person shall be nominated by one body — who
will, if they are a popularly elected one, be wise to
entrust their power of nomination to a committee of
their body who are, by profession or otherwise, better
qualified to judge technically between the rival qualifi-
cations of the different candidates than a promiscuous
taken assemblage possibly can be — and that the
nomination of the selecting body shall not take effect
till it is confirmed by some third person, possessed of
such technical and professional knowledge as enables
him to form a sound judgment as to the merits of the
selected candidate of whom he is asked to approve.
This would appear to be the best mode in which
judicial or semi-judicial offices should be filled. Such
appointments would probably then be filled in a
manner more universally acceptable to the public, and
to the benefit of the public service, than they always
are now, and individual merits would no longer,
as they now often are, left unrecognised for political
reasons, or even because their recognition would
stand in the way of other and less meritorious
claims, or it may be on account of some purely
personal dislike. The vast legal patronage of

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Judicial Patronage

the country, enjoyed by the Government of the day,
might well be entrusted to a Representative Board of
judicial personages, with the reservation of a power of
veto to that Minister of the Crown who, if he pleases,
can now monopolise for political partisans, friends,
and even members of his own family, or those con-
nected with it, a vast amount of patronage for which
he is nominally, but not effectively, responsible to
the Sovereign. Where a popular right to fill the
appointment is alleged, a similar principle might also
well be applied. Some day, perhaps, an Act of
Parliament will be passed to effect the end suggested,
and then the conferring of judicial offices will be no
longer regarded by professional politicans as the
legitimate spoils of victory, to be given to incompetent
political adherents or to even less meritorious objects
who owe their good luck to the accidents of birth
and connection rather than to any exertions of their
own.

The election to the Judgeship of the City of London
Court necessitated by the death of Mr. Prendergast
was made the opportunity for replacing him by the best
possible man whom the Corporation could obtain to
fill the post. It was conducted with an anxious care
to properly supply the wants of the suitors and of
the public which would favourably compare with any
appointment that any Lord Chancellor ever can make
under the conditions created by the Local Govern-
ment Act, 1888, or even with any appointment that
could be ever made at some time in the future under
an ideal system such as has been just suggested for the
exercise of the legal patronage by a specially appointed

83

Commissioner Kerr

Board of Legal Patronage whose appointments were
confirmed by the Lord Chancellor. There was, too,
no lack of very competent applicants seeking the
appointment.

Yet this election proved to be the last of an
unbroken series of elections to the City Judgeship
extending over centuries. The patronage was, as
mentioned already, taken away from the City by the
Local Government Act of 1888. Two grounds were
put forward as justifying this deprivation of popular
rights, neither of which appears to justify the act.
One reason alleged was that the quarrels between the
Judge and the Corporation, since the former's appoint-
ment in 1859, had become a public scandal. Now it
absolutely cannot be denied that the action of some
members of the Corporation of London itself, during
the earlier part of this period, had no doubt been such
that it had attracted general public attention. Without
discussing here which side was right, or whether either
was so entirely, it unfortunately cannot be denied that
some members of the Common Council, although
they had been warned of the probable consequences
of their conduct by some of their fellows who were
more mindful alike of both the Corporation's and
the Judge's dignity, and of the real interests of
the former, than they were — these persons, instead of
addressing the Law and City Courts Committee when
they had a supposed grievance to bring forward, and
leaving matters wholly in the hands of that Committee,
had unhappily insisted upon bringing about a discussion
in public about every difference of opinion as to any
matter, and upon every application made by the Judge

84

Judicial Patronage

for an increase of salary. Some of the Corporation,
too, appeared to have forgotten that the Judge might
well think that the enormously increased business of
this Court gave him a moral right from time to time
to have his salary equitably readjusted in proportion
to the increased business, and consequently to the
work imposed upon him. Moreover, the Common
Council had not always contented itself with merely
differing from the Judge of the Sheriffs Court on
various details, but had even differed from its own
committees. Yet, admitting all these things to have
at one period taken place, the state of matters
had been entirely altered for about nine years pre-
viously to that confiscation of the City's patronage
which took place in 1888. The Corporation had,
during all this last period, been content to leave
matters to be adjusted between itself and the Judge
by a competent committee of professional men chosen
out of its own body, whose action it had uniformly
endorsed.

Another reason, given at the time of the passing
of the Act of 1888, for depriving the Corporation
of London of its judicial patronage, was that it had
made an evil use of it by making bad appointments.
The one solitary occasion on which it had made an
appointment which could be thus characterised was
that it had filled a judicial office by electing a gentle-
man to it on the supposed strength of his having
shown great ability by writing a law book on a subject
which commanded much public attention at the
moment. The book had, amongst the host of others
which simultaneously appeared on the same subject

85

Commissioner Kerr

in truth, attained some success, if not that which it had
been hoped for it. Its writer, however, did not, on
the Bench, succeed in obtaining the confidence of the
public — largely, perhaps, because he was too honest
and too diffident : instead of " ruling" in a bold and
peremptory fashion, and in a loud voice dictatorially
insisting on the correctness of his own views, he some-
times allowed it to be seen that he felt conscientious
doubts, and would even seek, in a somewhat timid
fashion, to get his views confirmed by others. But this
mistake on the part of the Corporation (even if it was
one) had been speedily set right by the City, in a
manner not only creditable but highly to the honour
both of itself and of the gentleman who had been ap-
pointed. His action, so soon as it was made known
to him that his administration of justice did not com-
mand public confidence, was the same as it once fell
to the writer's lot to learn had been taken by a late
well-known judge. In this latter case, also, it had
become imperative for his real friends to convey to a
distinguished jurist and Judge, not at all times a
man of gentleness of demeanour, that the public
press was at least questioning his judicial capacity, and
was calling in unmistakable terms for his retirement
from the Bench. Several of them had, in anticipation
of "a scene," assembled in a country house between a
certain Saturday afternoon and the following Sunday,
during which it was arranged that the disagreeable
communication should be made. In each case
the intimation necessary was gently conveyed to the
judicial personage whose capacity was in question,
that the administration of public justice would be

86

Judicial Patronage

more satisfactory, in the eyes of the world, if his place
in it were filled by some one in whom greater confi-
dence was generally felt than it was in himself. It was
no sooner made than the person indicated at once
calmly determined, of his own good sense, that, under
the circumstances, it would be far better, alike for main-
taining the confidence almost invariably felt in Courts
of Justice in this country,and for himself, that he should
no longer occupy the judgment seat. In both cases
those concerned arranged that a handsome pension
should be provided for the retiring Judge. In both
cases, the arrangement was carried out without any
" scene " or scandal, in a manner which reflected the
highest credit upon all concerned. Any justification
on this ground for what was done in 1888 fails as

o

completely as the other alleged ground which has been
already mentioned to have been put forward.

The incidents connected with the last election, in
1859, of a Judge of the Sheriffs Court will, under the
circumstances, be presently set out in some detail. For
they play an important part in the history alike of
the City, and of the not undistinguished individual
who proved to be the last of the Judges elected solely
by the choice of the City, whose career it is the object
of these pages to outline.

The confiscatory clauses in the Local Government
Act of 1888 were unfortunately introduced hastily,
during the passage of the Bill through Parliament.
They appear not to have been the subject of negotia-
tion and arrangement with the Corporation. By an
amendment, rights of appointment which had long
survived were suddenly, without warning, confiscated

Commissioner Kerr

to "the Crown." The so-called rights of "the Crown"
thus created are really now exercised through and by
the Lord Chancellor of the political party in power
when a vacancy occurs, as being the Minister gene-
rally responsible for the selection of those by whom
public justice is to be administered. The City, wrhich
of late years has closely entrusted itself to Conservative
partizans, and given politicians of that side in politics
the monopoly of the preservation of its rights, found
itself compelled to join in chorus with " Save me from
my friends! " Irish landlords and publicans.

Fears lest some legislation such as that which
took place in 1888 would one day deprive the
Corporation of the power of appointing its judicial
officers, had begun to exist even in 1859. The
citizens of London were, at the earlier date just
mentioned, naturally jealous of and anxious to retain
the privilege of making its own judicial appointments,
which had been possessed in Anglo-Saxon days, and
had been successfully defended and retained during
alike the Norman Conquest of 1066, and the struggles
both during the Commonwealth and of the Revolution.
That some grave apprehension on this score existed
even in 1859 is however evident from an article which
appeared in the City Press of April 2nd in that year
in the terms following : —

THE VACANT JUDGESHIP.

Before the Municipal Corporation Reform Act of 1835 all the
boroughs of England and Wales enjoyed the privilege of electing
the Judges of their own Courts. The transference to the Crown of
the right of nominating these important officers in the Boroughs to
which the Act applied was one of the chief alterations effected by

88

Judicial Patronage

that important statute. It was a change loudly called for. The
taint of jobbery and corruption which pervaded the Borough
management in general had extended to the appointment of those
who were charged with the administration of justice, and it was
hoped, anticipated, and intended that the nomination of the local
Judges by the Crown would be free from the nepotism and other
objectionable features of the elections of the Town Councils. The
anticipations of the Reformers have been fully justified, for, except
in one or two instances, the appointment of recorders and stipendiary
magistrates by the Home Secretary have been altogether unobject-
tionable in themselves and satisfactory to the public. The reason
is obvious. The Home Secretary is responsible not only to the
House of Commons, but, what is of more importance, to public
opinion, a responsibility the nature of which may be gathered from
what occurred in the recent case of Mr. Higgins, who resigned an
office of ^2,000 a year rather than have his appointment discussed
in the House of Commons. The City of London was excepted
from the operation of the Statute of 1835, its reform being reserved
for separate legislation, a distinction — if distinction it may be called
— obtained as much by its own importance as by its influence in
the House of Commons. That reform has long been impending, but
the opportunity of obtaining it from what were considered friendly
hands seems now to be permanently lost, and it may not unreason-
ably be expected that the longer the measure is postponed
the more extensive and radical will be the changes effected by
it when it comes. We are so much the friends of muncipal
independence and so anxious to preserve our right of local self-
government, that we desire and indeed hope to see the Corporation
of London itself effect most of the reforms in its constitution
which have become necessary. It may be that on some points
the aid of the legislature may be necessary, and if so this aid will
be readily obtained, but if the Corporation wishes to keep its
reform in its own hands, it must show that the powers it possesses
will not only not be abused, but on the contrary that they will only
be exercised in the way most beneficial to the public.

These remarks have been called forth by what has appeared in
the past week in the columns of the daily press with reference to the
vacant Judgeship of the Sheriff's Court. To the maxim "De
mortuis nil nisi bonum " we desire scrupulously to adhere. We will
say nothing derogatory of the late Mr. Prendergast, but we think we

Commissioner Kerr

express a very general feeling when we observe that the appoint-
ment to the Judgeship of the Civil Court of a gentleman whose
practice has been almost entirely confined to the Old Bailey was a
mistake on the part of our City Council. Our object at present must
not be misunderstood. We have no wish to guide or indeed to
attempt in any way to influence the choice of the Common Council.
Our wish is simply to call the attention of the Corporation to the
importance of the duty which has just devolved upon it. With its
many faults it deserves, and we believe possesses, the credit of having
with rare exceptions made excellent selections of its judicial officers.
The present Recorder, who by the way entered the service of the
Corporation as Judge of the Sheriff's Court, is an accomplished
lawyer, and a more able Judge does not sit on any Bench. The
Common Serjeant has not as yet been fully tried, but he promises
to be in all respects an equally creditable appointment. The
Common Council must take care to provide for these gentlemen an
equally well qualified colleague.

We do not for a moment suppose that any attempt is likely to be
made in any Bill which may be introduced for the reform of the
Corporation to transfer the judicial offices to the Crown. But we
confess that we do not depend implicitly on the reticence of the
hundred or so Barristers in the House of Commons, all of whom
have an indirect interest in increasing the legal patronage of the
Home Secretary, who is not less anxious to obtain for himself the
means of closing the mouths of his clamorous supporters. Distant
as the danger may seem, it must always be borne in mind that the
ancient Anglo-Saxon system of electing Judges was practically
confined to the City, is altogether an exceptional case, and in our
legal constitution an anomaly, the Crown being the spring and
source of justice and therefore invested with the right of main-
taining the Judges by whom it is to be administered. One or two
failures on the part of the Corporation to select proper persons to
fill its judicious offices must inevitably lead to public complaint,
(which has already indeed made itself heard in the Court of Common
Council), and the only remedy likely to be suggested would be the
precedent afforded by the Act of 1835, a precedent which a
great many of our legislators are interested in following. With these
views, it is with a feeling of regret that we see committees formed
to secure the return of a Judge, because the election of so high a
functionary ought to be carried out with the utmost disregard and

90

Judicial Patronage

repudiation of every local or party interest, and we earnestly hope
that the committee of Officers and Clerks to whom an inquiry as
to the nature, duties, and emoluments of the vacant office has been
referred will give the subject their most careful and anxious con-
sideration. The importance of the inquiry can scarcely in our
opinion be exaggerated, and for various reasons it is one not only
of present but of permanent interest in our great commercial
community.

Many bearers of names well known and famous in
English history had in past days been willing to serve
as Judges of the Sheriff's Court of London. Thus,
amongst those who have actually held a Judgeship of
the Sheriff's Court, are Sir Thomas More, who was
Judge of the Giltspur Street Compter in September,
1510; Sir Thomas Coventry, the outrage upon whom
was the cause of the well-known " Coventry Act ; "
and more recently, Russell Gurney, who afterwards
became an excellent Recorder of London, and one of
the best it ever has possessed. Amongst the names
of those who were at one period in life unsuccessful
candidates for the office of a Judgeship of the Sheriff's
Court may be mentioned that of the great Lord Bacon.

As is usual in the City of London, on a vacancy
occurring in an office, on the death of Mr. Prendergast
it was referred to the Officers and Clerks Committee
to inquire into the nature, duties, and emoluments of
the office of Judge of the Sheriff's Court. The
report brought up on this reference simply recom-
mended that there should be no alteration in the
office and that the salary should remain as heretofore
—namely, ,£1,200 per annum. This report was
received on April 15, 1859.

It was greatly to be regretted that the report

Commissioner Kerr

merely fixed the salary of the office and omitted to lay
down any principle upon which that salary then was, or
ought in future to be, calculated in some manner that
it would always be proportionate to the work of the
Court. ,£1,200 per annum was fixed as the proper
salary of the office. It may, however, be usefully
explained here that ^900 of the ,£1,200 per annum
was to be paid as renumeration for the work of the
Sheriff's Court, while the remaining ,£300 per annum
was payable for the discharge of the statutory duties
of attendance at the Old Bailey, which an Act
regulating that tribunal imposed upon any Judge of
the Sheriff's Court. As the earnings of the Sheriff's
Court were at that time about ,£4,000 a year, the
proper salaries payable for the discharge of its judicial
work were obviously taken at about nine-fortieths of
the fees earned. Much trouble in after years would
have been avoided if this report had clearly and
definitely laid down this basis of payment. The same
proportion was again arrived at in 1899, when, the
fees of the Court having increased to five times what
they were in 1859, five times the salaries then fixed
were reported to be the proper ones to be paid.

Perhaps, however, the explanation is that no one
at that time contemplated that the business of the
Sheriff's Court, would ever be substantially increased.
Indeed it is a curious comment upon the state of
things which at that time prevailed that, upon the
report being brought up, one of the members of the
Common Council said that "for himself, he thought
that the office was a sinecure one, and ought not to be
filled up, but that the duties should be performed by

92

City Judgeship Candidature

the Common Serjeant." This view was, however,
not accepted.

Within a few days after the death of Mr.
Prendergast, Dr. Robert Malcolm Kerr had an-
nounced himself to be a candidate for the vacant post,
as he was well entitled to do alike by his judicial ex-
perience and position both at the Bar and as an author.
He made known his candidature by a circular dated
March 22, 1859, which is perhaps worth reprinting
here, as it affords conclusive evidence that the writer
" had little connection with the Corporation," and
rested his application upon merits alone, and not upon
any personal influence possessed by him with any of
the City authorities : —

I beg leave respectfully to offer myself as a Candidate for the
vacant office of Judge of the Sheriff's Court. I cannot but feel
that, enjoying but little connection with the Corporation, I may be
thought chargeable with some presumption in so doing, but I have
confidence in the care and impartiality with which you select the
officers who are to be charged with the administration of justice in
the City Courts, and this confidence is my best justification and
truest claim to your support.

This introductory circular was accompanied by
another of the same date (March, 1859) in which Mr.
Kerr described his claims and qualifications to fill the
office which he sought. This accompanying circular,
read in conjunction with his application for the office
of Common Pleader, furnishes a tolerably complete
outline of the writer's life up to the year 1859. It
is therefore of some interest, and may accordingly be
set out in full. It was as follows : —

So many friends among those on whom I have waited during the
past week have pointed out to me that you have been furnished with

93

Commissioner Kerr

no materials on which to form a judgment as to my fitness to fill
the vacancy caused by the death of Mr. Prendergast, that I am reluc-
tantly compelled to abandon my previous resolution, and to state
what I consider my qualifications for the office of Judge of the
Sheriffs Court.

I was called to the Scottish Bar in 1843 an^ to the Bar of
England in January 1848. I have since been uninterruptedly
engaged in the practice of my profession in London and on the
Northern Circuit, devoting my leisure during these years to the pre-
paration of various legal works.

In 1852 I published an edition of the first "Common Law
Procedure Act " a practice in fact of the Superior Courts of Law
which soon ran through a second edition and has been long out of
print.

In 1853 I wrote a work called An Action at Law which soon
became a handbook for legal students, a second edition having
been called for and published in 1855. In 1854 I edited the
second " Common Law Procedure Act," which like its predecessor
is now out of print. In November, 1855, I had the honour of
being elected Lecturer on Common Law and Criminal Law to the
Incorporated Law Society of the United Kingdom, and I held that
appointment for the usual period.

In 1857 I prepared for Mr. Murray, of Albemarle Street, an edition
of Sir William Blackstone's Commentaries on the Laws of England.
This work has been adopted for the examinations of students in
the Inns of Court and in the University of Cambridge.

It is an inflexible rule with the Judges, and for very obvious
reasons, to refuse testimonials to members of the Bar applying for
orfice in England. To these learned persons therefore it would be
improper to refer, but I have placed in the hands of my friends
communications from Sir Richard Bethell, Sir Henry Keating, Sir
Fitzroy Kelly and other distinguished persons in the profession to
which I belong. I have been pressed to publish these letters, but
intentionally confine myself here to those facts which I venture to
think justify my application to you.

I may add that since 1851 I have frequently acted as Deputy
Judge of the County Courts in various parts of England, so that I am
perfectly familiar with the judicial duties which will devolve on the
gentleman who will have the honour of being elected by you to fill
the very important office for which I have respectfully sought your
suffrages.

94

City Judgeship Testimonials

About a month later than the date of his March
circular the keenness of the contest, and the success
which he had met with in his canvass, induced Dr.
Kerr to obtain and publish testimonials from several
very eminent members of the legal profession of
his fitness for the post. It is interesting to read
these now, viewed by the light of the subsequent
careers both of their writers, and of the person in
whose favour they were written. So they will be
fully set out here. Two of the writers were dis-
tinguished Lord Chancellors, exceptionally great
even amongst the race of legal giants who reach
that position ; the list also comprised with the last of
the Chief Barons, a Judge of the Court of Common
Pleas, a County Court Judge, and a distinguished
jurist and ecclesiastical lawyer and classic. Kerr did
not come to the City without high recommendations :—

CANNES, Apru 12, 1859.

Lord Brougham feels bound to give his strongest testimony to
the legal talents of Mr. Kerr and his extensive and accurate
practical knowledge. The works which he has published are of
the greatest service to the profession. Lord Brougham feels assured
that the heads of the profession would join in this testimony were
they not prevented by the judicial etiquette.

HOUSE OF LORDS, March z^th.

DEAR SIR, — I am glad to hear that you are a Candidate for the
office of Judge of the Sheriff's Court, and I have great pleasure in
stating my belief that you will discharge the duties of that office
with great credit to yourself and with much advantage to the public.
The experience you have already had as a deputy County Court
Judge is, in my opinion, a very important circumstance in your favour.
With my best wishes, I am,

Yours faithfully,

RICHARD BETHELL.
R. Malcolm Kerr, Esq.

95

Commissioner Kerr

32, DOVER STREET, W., March 24, 1859.

MY DEAR SIR, — I have great pleasure in testifying that I consider
you every way qualified in point of intellect, learning, and capacity,
to become a Judge of the Sheriffs Court. I have not had many
opportunities of becoming acquainted with your actual practice in
your profession, but I trust that the assurance which I have now
given you in perfect sincerity may prove of some service.

I remain, very truly yours,

FITZROY KELLY.
R. Malcolm Kerr, Esq.

THE ATHENAEUM, March 26, 1859.

DEAR KERR, — In answer to your intimation that you are a
Candidate for the office of Judge of the Sheriffs Court, and your
wish that I should state my opinion of your fitness for that office,
I have great pleasure in saying that I think you exceedingly well
qualified to perform the duties of that office with credit to yourself
and benefit of the public.

Very truly yours,

HENRY S. KEATING.
R. Malcolm Kerr, Esq.

33, GLOUCESTER PLACE, HYDE PARK, April 20, 1859.
DEAR SIR, — I observe that you are a candidate for the Judgeship
of the Sheriffs Court. If it may be useful to you it is only proper
it should be known that you have several times acted as the Judge
in my absence of the County Courts in my district, and that your
administration of justice has, as I have every reason to believe, in-
variably given the utmost satisfaction to the suitors, the profession,
and the public.

I shall be exceedingly glad to hear that you have the appoint-
ment you aim at, and with my sincere wishes on account of the City
and yourself,

I am, dear Sir,

Your faithful servant,

J. HERBERT KOE.
Robert Malcolm Kerr, Esq.

MY DEAR KERR, — I cannot imagine a person better able to serve
the public in the situation you desire to attain than yourself. You
have given proofs of indefatigable industry, and a thorough know-
ledge of your profession in practice as well as theory.

96

Judgeship Testimonials

To these recommendations for such an office you add a very good
temper and a clear head. In the discharge of my duties I have
frequently had occasion to consult your edition of "Blackstone,"
and have never done so without advantage and satisfaction.
With earnest wishes for your success, believe me,

Always and truly yours,

J. G. PHILLIMORE.
Shiplake, April n, 1859.

One of the writers of a testimonial for Dr. Kerr
had somewhat characteristically also given a testi-
monial to another candidate.

Whether it is permissible, or "good form," even
if it can be allowed, to give a testimonial to one
candidate for an appointment, and another to a
different candidate, is still sometimes debated. But
the fact that Sir Fitzroy Kelly did so, when
Attorney-General of the day, furnishes an im-
portant precedent which other Barristers are
clearly at liberty to adopt if they so please. It
is not remarkable that a testimonial from Lord
Brougham was amongst those submitted by Dr.
Kerr ; for Lord Brougham must have known a good
deal of Dr. Kerr through the latter's father-in-law,
Charles Knight,1 and, on a later occasion,2 paid
him a handsome compliment in the House of Lords.
Political feeling in the City against Lord Brougham
had now ceased to run as high as it once did, and a
testimonial from Lord Brougham had become in 1859
not unlikely to command some respect and weight in
the City of London, and was by that time at least not
likely (as it would have been at some earlier dates) to

1 See ante, p. 22. 2 See/0.r/, at commencement of Chap. X.

97 H

Commissioner Kerr

prejudice the cause of the person in whose favour it
was offered as identifying him a little too closely with
the Radical interest ; but it would have been strange
if one were wanting.

Some of the best-known members of the Bar became
candidates for the office of Judge of the Sheriffs Court.
There was no lack of competitors for it. The City
Press, as early as April 9, 1859, was able to give a
list of the Candidates, subsequently superseded by
that set out below.

On the eve of the election, the following complete
list of the candidates for the appointment, and of
their various qualifications, appeared in the City
Press : —

CANDIDATES FOR VACANT JUDGESHIP.

In answer to numerous inquiries as to the qualifications of
Candidates, and to meet the wish of the general public for precise
information as to the competition for the appointment, we have
arranged the following list of Candidates, and appended a few
notes in explanation of their several antecedents, and the grounds
of their appeals for support.

We have placed their names in alphabetical order, and quoted
with regard to each only the most prominent points which are set
forth in the addresses.

Cooper, William, 3 Hare Court, Temple. Practised twelve years
in the Nisi Prius, Central Criminal and other Courts.

Corrie, William, fifteen years a member of the Northern Circuit,
some years magistrate of the Metropolitan Police Courts. Refe-
rences allowed to the Chief Baron of the Exchequer, Sir Samuel
Martin, Sir G. W. Bramwell, Sir W. H. Watson, Sir W. F. Channell,
Sir W. Wightman, Sir Charles Crompton, Sir J. S. Willes. Once a
candidate for the office of Chief Justice of Bombay, and then had
testimonials from Sir George Grey, Sir Fitzroy Kelly, J. A. Roebuck,
Esq., M.P., J. Rolt, Esq., M.P., Gathorne Hardy (then Under-
secretary of State), W. Atherton, Esq., M.P., and Right Hon.
E. Cardwell, M.P.

98

Competitors for Judgeship

Finlaison, W. F., fifteen years in practice at the Bar and fre-
quently at the House of Lords, author of Leading Cases ; 1847;
editor of Lawyer's Companion, Common Law Procedure Acts, Nisi
Prius Reports, Charitable Trusts Acts, &c.

Foster ; Gregory ', i, Pump Court, Temple. Many years member
of Home Circuit. Many years Deputy-Judge of one of the Metro-
politan County Courts. Will submit testimonials if required.

Kennedy, Charles Rann, Temple. We have received Mr. Ken-
nedy's short address, but not his testimonials.

Kerr, R. Malcolm, 2, Inner Temple Lane. Called to Scottish
Bar in 1843, to English Bar in 1848 ; engaged on Northern Circuit;
author of An Exposition of the Common Law Procedure Act, 1852,
An Action at Law, 1853, lecturer on Common Law and Criminal
Law to the Incorporated Law Society, 1859. Edited Blackstone's
Commentaries, 1857; since 1851 frequently acted as Deputy-Judge
of County Courts in various parts of England. Has testimonials
from Sir R. Bethell, Sir H. Keating, Sir Fitzroy Kelly, &c.

Morris, William, 10, Lincoln's Inn. Has practised at the Bar
thirteen years ; no testimonials sent.

Payne, William John, 2, Serjeant's Inn. Called to the Bar in
1842, joined Northern Circuit and Buckinghamshire, Suffolk,
London, and Middlesex Sessions ; acted as Deputy-Coroner for
London and Southwark in 1857, appointed Coroner for the Duchy
of Lancaster in the Home Counties.

Pulling, Alexander, 2, Crown Office Row, Temple. Fifteen years
called to the Bar ; has practised much in the Superior Courts and
Criminal Courts ; frequently acted as Judge of County Courts ; has
been twice a candidate for Common Pleadership and for the office
of Common Serjeant ; author of The Laivs, Customs, and Privileges
of the City of London, 8vo.

Simon, John, barrister of fifteen years' standing.

Sleigh, W. Campbell, Temple. Has not published an address.

Stammers, J., 123, Chancery Lane. Twenty-five years' practice
at the Bar in almost every Court, including the House of Lords'
Privy Council, and Courts of Common Law, Assizes, and Sessions.

Thomas, Ralph, i, Serjeant's Inn. For the past seven years in
commission as Serjeant-at-Law ; has frequently acted as Judge in
Criminal Courts to assist Her Majesty's Judges. Testimonials from
Sir Fitzroy Kelly and Mr. William Shee.

Wood, Charles William, i, Hare Court, Temple. Called to the

99

Commissioner Kerr

Bar in 1843 ; has practised as Special Pleader in the Superior
Courts of Common Law, and also belonged to Home Circuit, and
some time member of the Surrey Sessions. Was a candidate for
the office of Common Pleader in 1850, when the Common Council
abolished the office.

The City Press also simultaneously published an
article which shows how great was the anxiety of the
City to prove itself worthy to exercise judicial patron-
age and that the best of the many candidates should
be appointed. It said : —

THE VACANT JUDGESHIP.

With the object of assisting, as far as we can, the deliberations of
the Common Council in arriving at a right conclusion, and also with
the further view of informing the public, we have supplied an alpha-
betical list of the gentlemen who have offered themselves as candi-
dates for the office of Judge of the Sheriff's Court. This list, and
the qualifications there stated, have been compiled from the applica-
tions of the candidates themselves, their own language being in most
cases adopted.

If we say that in the competition which has ensued most of the
candidates are, in sporting language, "nowhere," we only state the
inevitable result of so many having started in the race. When we
add that, according to the best information we have been able to
obtain from different sources, the contest is already beginning to be
narrowed, we state only what is probably already known to most of
those with whom the selection lies. The gentlemen who at present
occupy the most favourable position possess very different qualifica-
tions for the office they severally seek, and, in making their choice,
it will be for the Common Council to decide what are really the
necessary and proper qualifications in a Judge of the Sheriff's Court.
On this question we refrain, for obvious reasons, from offering any
opinion whatever.

We have learned, incidentally, that the Committee on Officers
and Clerks do not intend to recommend any change in the nature,
duties, and emoluments of the office. We are not surprised at this,
for, except in the matter of emolument, no change can, we believe,

ICO

Incidents of Election

be effected without the aid of an Act of Parliament. The mode of
appointment of a Judge of the Sheriff's Court — his qualifications,
viz., being a barrister of seven years' standing — and the jurisdiction
and procedure of the Court are all regulated by a statute, obtained
for that purpose some few years ago. It is, however, enough to
state here that the Sheriff's Court is, in effect, the County Court of
the City of London, having jurisdiction for the recovery of debts
and demands up to £50 ; that upwards of thirteen thousand causes
are annually disposed of (an average, it will be observed, exceeding
one thousand a month), and that the Judge has a salary of one
thousand per annum. It ought, perhaps, to be stated that when
the present Recorder was Judge very nice questions of law were
raised in this Court. It would obviously be an immense advantage
to our merchants and traders to be able, at all times, to obtain with-
out delay and at a trifling cost the authoritative opinion of an able
commercial lawyer, the more especially when that opinion is formed
after hearing the arguments of both of the parties interested in the
determination of the question in dispute ; and, accordingly, this was
so much felt that the nicest and most difficult questions were fre-
quently left to the determination of Mr. Russell Gurney as Judge
of the Sheriffs Court, this decision, it will be recollected, being
final. The statute which created it at the same time directed who
should be the Judges of the Central Criminal Court. They are the
Lord Mayor and Aldermen, the Lord Chancellor, and all the Judges
of the Superior Courts of Common Law, the Chief Commissioner of
the Court of Bankruptcy, and the Recorder, Common Serjeant, and
Judges of the Sheriffs Court. It is by the statute that the Judge of
the Sheriff's Court is enabled to act as a Commissioner at the Old
Bailey. To induce him to undertake that duty the Corporation pays
him .£300 per annum, thus making the office now vacant worth
;£i,2oo a year. The civil duties of the Judge of the Sheriffs Court
(looking at the salary) seem, therefore, to be, in the estimation of
the Corporation, three times more important to the community than
those which devolve upon him as a Commissioner at the Old Bailey.
This much of the nature, duties, and emoluments of the vacant
office. Other matters worthy of consideration in reference to it
may suggest themselves, and we may, therefore, return to this
subject unless, as we truly anticipate, the election takes place on
Thursday next, immediately after the adoption of the Committee's
Report. We feel perfectly satisfied that, in the opinion of the Court

IOI

Commissioner Kerr

of Common Council, as in that of all of our readers, nothing can
be more important than securing, by the appointment of a gentleman
of reputation, learning, and experience, the proper administration of
justice in the Courts of the City of London.

On the very day appointed for the election Dr.
Kerr "took up" the freedom of the City, as he
records in a note of that fact made by him
on a document which is subjoined, formally recording
that fact, " so as to be eligible as a candidate for the
Judgeship." This formality was required by the
standing order of the Court of Common Council and
was accordingly complied with by Dr. Kerr. The
excellent report of the proceedings which appeared in
the next day's Morning Advertiser showed, however,
that this standing order had afterwards to be dispensed
with to meet the case of one candidate — Mr. Cooper,
who disappeared on the first show of hands which
was taken. The formal document on which the
cautious Commissioner has made the memorandum
is itself in the terms following : —

I, R. M. K., do solemnly declare that I will be good and true to
our Sovereign Lady Queen Victoria ; that I will be obedient to the
Mayor of this City ; that I will maintain the Franchises and Customs
thereof, and will keep the City harmless, in that which in me is ; that
I will also keep the Queen's Peace in my own person ; that I will
know no gatherings nor Conspiracies made against the Queen's
Peace ; but I will warn the Mayor thereof; or hinder it to my power :
and that all these points and articles I will well and truly keep,
according to the Laws and Customs of this City, to my power.

R. M. K.

The foregoing Declaration was made and

subscribed at the Guildhall of the City

of London this $th day of May, 1859,

before me, J. SEWELL.

102

Incidents of Election

Thursday, May 5th, had long previously been
appointed as the day on which the election to the
Judgeship was to take place. The scene in the
Council Chamber was most excited. About seven-
eighths of the entire Court was present, numerous
strangers were present, and the whole of the sixteen
candidates appeared duly robed and wigged. It
was first resolved that the usual standing order
as to the rotation of business should be dispensed
with and the candidates reduced first to six and
then to two by successive shows of hands, and
that a poll should be taken as between these two.
Then it was unanimously resolved that every person
who had ever been insolvent should be disqualified.
It is upon this flimsy foundation that there has been
founded the idle tale before alluded to that Dr. Kerr's
election was due to the trick of his having disqualified
his principal opponent by a technical objection taken at
the last moment. Not only was the disqualification
revived unanimously by the Court at the very com-
mencement of the proceedings, but only one candidate
could in any case have been disqualified by it, and he
had not considered his chances of success to be suffi-
ciently good to justify him in issuing an address.

The sixteen candidates reduced themselves to
eleven before any show of hands was taken. The
eleven left were Messrs, (i) Pulling, (2) Serjeant
Thomas, (3) Corrie, (4) Kennedy, (5) Morris, (6)
Foster, (7) Gregory Foster, (8) Finlaison, (9) Kerr,
(10) Cooper, (n) Payne. The first show of hands
reduced the number of candidates to Nos. i, 2,

3» 9-

103

Commissioner Kerr

A further show of hands resulted in only two
candidates, viz., Mr. Corrie (No. 3) and Dr. Kerr
(No. 9), being left to compete by poll for the appoint-
ment.

This poll, it was decided, should last for an hour
only. It accordingly commenced at twenty minutes
before four and was really concluded at twenty minutes
past four, though it was not formally closed till the
expiration of the allotted hour. Its result had become
known long before it was finally closed, but at the
agreed hour, viz., twenty minutes to five, it was
formally announced by the Lord Mayor (Alderman
Wire), that Dr. Kerr was elected by a majority of two,
the numbers being as below : —

For Kerr ... ... ... ... ... 102

For Currie ... ... ... ... ... 100

Majority for Kerr ... ... ... 2

We learn from the report in the Morning Post of
the next day but one after it, that the Lord Mayor,
having declared Mr. Kerr duly elected, that gentle-
man suitably acknowledged the honour which the
Court had conferred upon him, and that Mr. Corrie
also thanked his supporters in appropriate terms.

Mr. Corrie, the candidate who came within two
votes of the Commissioner, was identical with the
gentlemen who, not long subsequently, became City
Remembrancer. He was a "Citizen and Spectacle
Maker," and his other qualifications have been
described on a previous page.1 Elected to his office
in 1864, he held it until 1878.

1 See ante, p. 98.
104

Result of Election

A detailed account of the election to the Judgeship
was given in the next issue of the City Press in the
terms following : —

The Court then proceeded to elect a Judge of the City Sheriff's
Court, rendered vacant by the demise of Mr. Prendergast, K.C.

The following gentlemen were severally nominated as candidates :
Alexander Pulling, Esq., Mr. Serjeant Thomas, Malcolm Kerr, Esq.,
William Morris, Esq., T. Campbell Foster, Esq., Gregory Foster,
Esq., W. H. Finlaison, Esq., W. Corrie, Esq., W. Cooper, Esq.,
John Payne, Esq. In accordance with the resolution of Mr. H. L.
Taylor, as given above, the number of candidates was reduced to six,
and, upon a show of hands being taken, the Lord Mayor declared
the six successful candidates to be Messrs. Pulling, Serjeant Thomas,
Kerr, T. C. Foster, Finlaison, and Corrie. The number was then
further reduced and Messrs. Finlaison, T. C. Foster, Serjeant
Thomas, and Pulling, were successively placed in a minority. The
contest was consequently left between Kerr and Corrie. The
election then took place by poll, which opened at twenty minutes to
four, and closed at twenty minutes to five o'clock precisely. During
this period the utmost excitement prevailed, both inside and outside
the Court. The Scrutineers, Mr. Deputy Obbar and Mr. J. E.
Saunders, at the close of the poll, announced the numbers to be as
follows : —

For Mr. Kerr ... ... ... ... 102

For Mr. Corrie ... ... ... ... 100

Majority for Mr. Kerr 2

The result was received with much cheering.

The Lord Mayor, having officially stated the numbers, declared
Mr. Malcolm Kerr duly erected Judge of the City Sheriff's Court.

Mr. Kerr, who seemed much moved, then returned thanks, and
assured the Court that no effort, no desire, and no labour should be
wanting to justify the choice which they had made (cheers). Mr.
Corrie briefly addressed the Court, and thanked the members who
had kindly voted for him.

The Morning Advertiser, May 6, 1859, contained
a somewhat fuller and more graphic report of the

105

Commissioner Kerr

proceedings than has hitherto been given. It was
as follows : —

Yesterday a very numerously attended meeting of the members
of the Court of Common Council was held in their Chamber at
the Guildhall, the Lord Mayor presiding.

The agenda paper showed a vast amount of public business — far
more indeed than usual. By one o'clock, the hour appointed for
the meeting of the Court, the strangers' gallery was filled. His
Lordship having appointed yesterday for the election of a Judge
for the Sheriffs Court, a High Bailiff for Southwark, and a City
Carpenter, the interest excited was intense throughout the whole
of the proceedings. It will be perceived, however, that only the
Judge was elected. Mr. Catty, the newly appointed principal clerk
in the Town Clerk's Office, read the minutes of the former Court,
in the midst of great impatience and confusion. They were agreed
to as having been correctly transcribed. The ordinary business of
a preliminary character was disposed of without comment.

After the reference of a petition ... to the Bridge House Estates
Committee, the members of the Court proceeded to the election
of a Judge of the Sheriff's Court. During the course of several
years' experience in the proceedings of this Court, we never wit-
nessed such a scene of excitement as prevailed on this occasion.
About seven-eighths of the whole Court were present, both aldermen
and commoners. The gallery was literally, and the avenues from
the lobby completely, choked. The candidates were announced to
be sixteen in number, the whole of whom appeared in their wigs and
gowns, in accordance with their position at the Bar. The members
of the Court evidently appeared to feel the responsibility of the duty
which rested upon them in the disposal of so important an office as that
of Judge of the Sheriff's Court, and in criminal cases at the Old Bailey,
and it will be seen from the following details that they were anxious
to guard against anything like an improper disposal of the office.
The first step which was taken was the adoption of a Motion pro-
posed by Mr. H. L. Taylor and seconded by Mr. Ross, but opposed
by Deputy Lott, who thought the more just way would be a simul-
taneous nomination of the candidates. Mr. Taylor's Motion was as
follows : " That the seventh standing order be suspended upon the
occasion of election of Judge of the Sheriff's Court, and that the
number of candidates for the said office be reduced to six, by show

1 06

Press Descriptions of Election

of hands, that they be then further reduced seriatim to two, and that
the Court do then proceed to the election by poll." Immediately after
this had passed, the Lord Mayor suggested that the whole of the
candidates should be called to answer their names and appear before
the Court. It was agreed that this form should be observed, but
Mr. Abraham having a notice upon the paper which formed a text
of eligibility, it was decided first to dispose of that. Mr. Abraham
consequently moved,1 both Mr. Barkley and Mr. Gammon rose
to second the motion, and both claimed having done so. The
proposition was unanimously carried. The names of the several
candidates were then submitted, but eleven only appeared and took
their seats at the left hand of the Lord Mayor. The following is
a list of their names, in the order of proposition, viz. : Messrs.
Pulling, Serjeant Thomas, Corrie, Kennedy, Morris, Foster, Foster
(Gregory), Finlaison, Kerr, Cooper, and Paine. The inquiry
whether they were free having been put, Mr. Cooper said he was
not. Whereupon, the standing order requiring all candidates to be
free of the City was suspended, upon the motion of Mr. Ross,
seconded by Mr. C. Young. The Court then proceeded to reduce
the eleven candidates to six, in accordance with the terms of Mr.
Taylor's Motion, when the following result appeared : The names
of Messrs. Pulling, Thomas, Kerr, Foster, J. W. Finlaison, and
Corrie were retained. The reduction to two left the names of Mr.
Kerr and Mr. Corrie as the sole competitors. The Lord Mayor
directed that the final issue should be the result of a poll, to last
one hour and no longer. At twenty minutes to four o'clock such
poll began, being continued until 4.20. The way in which it was
taken was as follows : The Town Clerk read first the names of the
Aldermen, according to their seniority, and then the names of
the Commoners, in the alphabetical order of the initial letters
of the names of their several wards. Those present then audibly
declared for whom they voted. The list having been gone through
twenty minutes before the expiration of the time allowed for the
election, a few then polled, but the fact having oozed out, in conse-
quence of the private checks of members, that there was not more
than two or three difference in the numbers for each candidate, the
excitement became intense, and the activity of members, looking up
their absent friends, of the most vigorous character. The final

1 The terms of the Motion are set out, injra p. no.
107

Commissioner Kerr

moment having arrived, the Common Crier and Serjeant-at-Arms,
Mr. Bedhouse, announced the poll to be closed. Messrs. Obbard
(Deputy) and Saunders (J. E.), the Scrutineers, then carefully cast
the numbers, which at five o'clock the Lord Mayor announced
to be—

For Mr. Kerr ... ... ... ... 102

„ Mr. Corrie ... ... ... ... 100

Majority for Mr. Kerr ... ... 2

The result was received with cheers.

Mr. Kerr then returned thanks, and so did Mr. Corrie, the
defeated candidate, whose remarks were loudly applauded by the
numerous assembly.

The Morning Star of the same date (May 6,
1859) disposed of the matter very shortly, in the
following words : —

COURT OF COMMON COUNCIL.

The election of Judge of the Sheriff's Court then took place.
There were a great many candidates, but most of them received
very little support.

Mr. Kerr was ultimately elected by a majority of two over Mr.
Corrie.

The Standard of May 7, 1859, commented favour-
ably on Mr. Kerr's election, in the terms following :—

THE NEW JUDGE OF THE CITY SHERIFF'S COURT.

The Common Council, in their choice on Thursday of a gentle-
man to succeed the late Mr. Michael Prendergast, Q.C., as Judge of
the City Sheriff's Court, have gone far to justify, in the eyes of the
public and the legal profession, the propriety of entrusting them
with so very an important power. From a list of candidates of high
respectability, they have chosen the particular individual who could
fairly display his fitness for the office by actual qualification. Robert
Malcolm Kerr, Esq., LL.D., is an advocate of the Scottish Bar, and
a Barrister of considerable experience, but whose writings perhaps have

108

Press Criticisms on Election

given him most position. Those works deal both with the practice
and the principles of the law. His Action at Law has gone through
several editions, and his edition of Blackstone has had a very signal
mark of approval in being selected by the Inns of Court as the text
books from which to examine law students on probation for their
call to the Bar. At first sight the Common Council would seem to
constitute rather a strange tribunal for deciding the qualities necessary
in a man who was to hold a very important judicial office, but they
have certainly acquitted themselves with credit in the election of
Mr. Judge Kerr.

The press of the time were pretty unanimous in
their view that the action of the Corporation, which
had the effect of disqualifying Serjeant Sligh, in
consequence of his having been previously a bank-
rupt, was to be highly commended. The terms in
which they referred to the incident are, in themselves,
a sufficient refutation of the venomous slander before
referred to, by which Kerr's enemies and traducers
hint that his election to the office he obtained was
by means of recourse to what was a shabby and
disreputable trick — namely, by suddenly, and at the
last moment, in short, on the very eve of the election,
digging out of the dust which had accumulated upon
it by long disuse an obsolete rule of the Corporation.
Such was not the view taken at the time ; nor was
there a hint (as there certainly would have been from
among the many disappointed candidates had there
been any foundation for such a suggestion) that the
act was an electioneering trick.

The Globe may be well taken as representing the
metropolitan press on this matter. It devoted an
article to the subject on May 7, 1859, as fol-
lows : —

109

Commissioner Kerr

The popular election of a judicial officer, even by the Corporation
of London, is of consequence chiefly to the learned candidates,
whose long years of study have left them still eager to obtain an
appointment worth some £1,200 a year. There were ten can-
didates for this Judgeship of the Small Debts Court. But an event
happened which renders the election of Thursday last eminently
noteworthy, and most honourable to the Corporation. On the
Motion of Mr. Abraham, the Court unanimously resolved : " That
no person be eligible to be a candidate for the office of Judge of the
Sheriffs Court who has ever been convicted of fraud, or who has
compounded with his creditors, or been a bankrupt, or has taken
the benefit of any of the Acts for the relief of insolvent debtors,
and has not paid 205. in the £ ; this Court being of opinion that
the terms of the thirty-ninth Standing Order, disqualifying members
of the Court from serving on Committees or Commissions chosen
by this Court, or from becoming Governors of either of the Royal
Hospitals by virtue of an appointment of this Court, should be
applied and acted upon in the cases of candidates for judicial
appointments under the Corporation."

It does not seem much to say to aspiring clever young men,
" Owe no man anything," " Live not beyond your income," " Mind
for whom and for what you become surety," but, unless these grave
saws are made palpable, by the facts of real life, to demand
obedience, and by stern sanctions, they will be unheeded. Men
must know, and live under, the hourly terror of suffering, that ill-
managed money affairs indicate a feeble mind, and render them
unsafe as public servants, and, whatever may be the extenuating
facts, such facts can be of no public avail whatever, for the whole
experience of the world shows that money trouble is the result,
in general cases, of imprudence. Prudence is the result of organi-
sation and of education combined, just as courage in the speciality
of a soldier is the result of both those causes. If men be disqualified
because they have not prudence, people will cultivate and respect
the virtue, for they will live in fear that their best hopes will be
blighted. If they do not so prudently live as to be innocent of
destroying other men's treasure, those persons who have not
prudence naturally, and who cannot learn it, will be very justly
constrained to seek some humble and less responsible vocation.

The competitive examination now so generally required encourages
more assiduity in school learning ; it tends to raise the intellectual

IIO

Press Criticisms on Election

average of all who have natural talents ; it renders all more in-
dustrious. They try for more, and they attain more. The dunces
take a humble and proper place, and the public service does not
miscarry by men's incompetence. The Corporation of London has
the great credit of having gone a step beyond this, and decided that
a man's nature, and his education, must develope not only the
requisite intelligence, but the requisite self-restraint and good conduct.
Great pains were taken to learn who was the cleverest man, but also
it was determined that his nature and his education should manifest
the requisite moral force in order to restrain foolish, mischievous, or
dishonest conduct otherwise. Said they, " The smartest one among
you shall be no judge of ours." Such a public rule, if adopted by the
whole State — as we hope it will — here is an admirable beginning —
will produce the grandest results for good. Not only would the
manners of those who hold public places be improved, but the lives
of all those who hope to obtain such, and indeed the lives of all the
people, would be improved. It is no exaggeration to affirm that the
excellent example set by the Corporation, if followed out, will save
hundreds of thousands of treasure, and thousands of ruined fortunes
and blighted hopes. If it become a rule that insolvency is a dis-
qualification for public service, the terrors of such an apparently
stern, but in truth most kind and merciful discipline, will constrain
and compel many a fine genius, and many a high-spirited, gallant
young fellow, to keep his money and live prudently. It was DESTUIT
TRACY who said, " Restraining laws strictly administered make the
most influential part of the education of a people."

While the above article may be taken as representa-
tive of the feeling of the metropolis generally on the
subject, the City feeling was, as usually, well represented
by the contents of the City Press. The City Press
of May 14, 1859, contained some remarks on the
subject as follows :—

THE ELECTION TO THE JUDGESHIP.

The resolution proposed by Mr. Abraham, and carried with
acclamation by the Court of Common Council before proceeding
to the election of Judge of the Small Debts Court, was eminently

ill

Commissioner Kerr

honourable to that assembly. Talent, law, knowledge, professional
skill, are not sufficient qualifications for public appointments. A
man's character must be free from blemish, he must have a moral
weight, or he is as " sounding brass and a tinkling symbol." No
doubt there may be hard cases, and men may have been in
money trouble — may have been bankrupt, have taken the benefit
of the Insolvent Debtors Act — and yet be honest, prudent men. But
the whole experience of mankind is against the conclusion as one
which can be adopted safely. Men who have been insolvent are
ipso facto disqualified from holding public appointments of a re-
sponsible judicial and educational kind, and, when properly con-
sidered, a judicial officer is one of the most important educational
officers in all society. A public body, like the Corporation, would
sadly have forgotten its metropolitan and national position, had it
allowed any mere clever person to stand before the assembled
councillors and magistrates, who was suffering under so heavy a moral
disqualification as insolvency, and it would have been an injustice to
other men of equal talent, to have allowed any such to take so
honourable a position. The Corporation have set an example of
enviable virtue to our Reformed Legislature, where and whereby, we
fear, many persons are allowed to take public, judicial, and other
offices, who would have been repudiated by the citizens of London.
The Corporation has done more than this : it has read a lesson to all
young men, coming into the world, that they must live honestly,
prudently, soberly, or other intellectual gifts will not avail them in
their ambition to attain distinction. We hope the Lord High Chan-
cellor of England, the Judges of the land, and others of high
patronage and influence, will not allow the noble example of the
Corporation of London to be lost upon them. It should be under-
stood that the Corporation have only applied to public officers the
same good rule they apply to themselves, for they will not allow any
member of their Court who is, or has been, insolvent, to sit upon
their committees.

Just a week and a day after his election, viz., on
Friday, May 13, 1859, the newly-elected Judge of the
Sheriffs Court was duly sworn into office before a
Special Court of Aldermen, which was held at the

112

Swearing in after Election

Guildhall for the express purpose of performing that
ceremony. An account of the occurrence is, of course,
to be found recorded in the City Press of the
period. Thus, in its issue of Saturday, May 14, 1859,
it contained a biographical notice of the new Judge,
concluding with a wish that, " May he long enjoy
the confidence of his fellow-citizens in the adminis-
tration of justice," and succeeded by a report as
follows : —

SWEARING-IN OF THE NEW JUDGE.

Yesterday a Special Court of Aldermen was holden at the Guild-
hall for the purpose of swearing-in Mr. Robert Malcolm Kerr as
Judge of the Sheriffs Court. The Right Honourable the Lord
Mayor presided. Of the Aldermen present we observed : Sir John
Musgrave, Bart, Sir Peter Laurie, Knt, Sir Chapman Marshall,
Knt., Alderman and Colonel Wilson, Alderman Lawrence, Sir R. W.
Calden, Knt., Alderman Meelie, Alderman Humphery, Alderman
and Sheriff Hale, Alderman Finnis, Alderman Allen, Alderman
Carter, and Alderman Copeland.

There were also many members of the Common Council in
attendance.

The proceedings in the former Courts of Aldermen and Common
Council having been read by Mr. Catty and confirmed,

Robert Malcolm Kerr, Esq., Barrister-at-law, was then introduced
to the Court, and subscribed to the oaths of abjuration and
supremacy, and took the customary oath as Judge of the Sheriffs
Court, and Under-Sheriffand Judge of the Giltspur Compter.

The Court then adjourned.

Later on the same day, the newly appointed Judge
took his seat as a Commissioner of the Central Criminal
Court. This fact is noted in the Morning Post of
Saturday, May i4th, which reports that on the pre-
vious day —

113 i

Commissioner Kerr

During the afternoon a jury was sworn in the Grand Jury Room,
and presided over by the newly appointed Commissioner, Mr. Kerr,
who disposed of several trifling cases.

Upon his taking his seat, Mr. Longford said it was his very grateful
duty to congratulate the learned Commissioner on his appointment,
which had given great satisfaction to the Bar, and hoped he would
remain many years amongst them.

114

CHAPTER V.

" MR. COMMISSIONER KERR " CLEANSES AN AUGEAN
STABLE ; AND HIS CONDUCT, JURISDICTION, DUTIES,
AND SALARY ARE DISCUSSED.

MR. COMMISSIONER KERR has now become
entitled to be so styled, by reason of his having
taken his seat at the Old Bailey on the afternoon of
Friday, May 13, 1859. Henceforward he will in these
pages usually be called by this name, by which he
himself always desired to be known — that of " Com-
missioner Kerr." The name of "Commissioner" is
derived from the fact that the Act constituting the
Old Bailey — commonly known as the Old Bailey Act,
1852, requires that, along with the Lord Mayor,1
who is the first Commissioner named, the King's
Judges, the Recorder of London, and certain others,
the Judges of the Sheriffs Court shall always be

1 It was probably from his being required by an old statute to be
always named, in the Commission for sittings at the Old Bailey, as the
first of " My Lords the King's Commissioners " that the Mayor of
London grew, by courtesy, to be on all occasions styled " My Lord."
The right conferred by the Statute of Maces of Rich. II. to, as
a King's Commissioner, have a mace borne before him, while those
not possessing this right were by the same statute forbidden to usurp
it, also, no doubt, had a considerable share in the Mayor of London
gradually being given the honorary title of " My Lord."

Commissioner Kerr

included as Commissioners. There are many Judges,
several Lord Mayors, and numerous County Court
Judges ; but no Judge, save of the Sheriff's Court,
is permanently designated as being legally a
" Commissioner." By Royal Warrant, all County
Court Judges are given the right to be addressed
as " His Honour Judge " So-and-so. But while
the late " Commissioner" Kerr continued in the
Old Bailey Commission, he was emphatically
"The" Commissioner, and would not tolerate any
other designation. A good-tempered friend once
suggested that he was entitled to go to Court
as "His Honour Judge," and advised him that, as
the City of London Court is for all purposes of pro-
cedure a County Court, he was entitled to go to
Court, and to be presented in the name and style of
a County Court Judge. But the Commissioner would
have none of this thing. He regarded his title of
" Commissioner" as more ancient and honourable than
any mere courtesy title conferred by Royal Warrant,
on the Judge of an only modern County Court ; just
as his ancient Court was, he claimed, superior to any
such modern "mushroom tribunal" as a mere "County
Court." *

1 His successors in the two Judgeships of the City of London
Court have, since the Commissioner's retirement, obtained a Royal
Warrant entitling them to all the privileges conferred by a previous
Royal Warrant ; and directing that the Judges of the City of London
Court, as the old Sheriffs Court is now styled, shall take rank and
precedence amongst other County Court Judges according to the
dates of their respective appointments. " New lamps for old," said
the Commissioner ; " the teaching of the Arabian Nights story
over again."

116

Takes his Seat

It was not till he had taken his seat at the
Old Bailey on the previous Friday, May i3th, and
thus entitled himself to be designated by the name
which he had selected and ever afterwards kept as
most appropriate to his position, that Mr. Commis-
sioner Kerr proceeded on Monday, May 16, 1859, to
in due form also take his seat as Judge of the
Sheriffs Court.

The Sun of the same evening — for curiously enough
The Sun has always been an evening luminary of the
press — reported the proceeding shortly, and made
some comments at the same time. What it said on
the subject that night was this : —

SHERIFFS COURT.

MR. KERR. THE NEW JUDGE. BUSINESS OF THE COURT.

The newly elected Judge took his seat this morning, and from his
manner it appears that he is quick and endowed with great coolness.
He was, to all appearances, quite at home in his judicial seat, and
he combines great serenity of manner with a not too stiff dignity.
Mr. Buchanan, Mr. Clarke, of Bedford Row, and Mr. Beard having
consulted as to the business course to be pursued, Mr. Buchanan
applied that applications should be taken first, adjournments second,
and new trials third. It very frequently happens that a professional
man, who had an application to make, was kept sitting about all day
until the rising of the Court, whereas, if the business of the Court
was slightly altered, matters would be greatly facilitated.

His HONOUR was extremely anxious to facilitate business. But,
supposing that there were many applications, suitors summoned
for a quarter to ten would be kept waiting. He would consider the
matter.

MR. CLARKE, of Bedford Row, said he had been induced to apply
to His Honour upon a subject of the greatest importance, and one
that affected solely the suitors of this Court. A short time since he,
Mr. Clarke, had to pay a heavy fee of £2 55. merely to apply for his

117

Commissioner Kerr

fee. Defendant had paid the debt upon the morning of the trial of
the cause, and in every other Court in such a case applications for
the Solicitor's fee were not subject to the payment of hearing fees.

His HONOUR found that it was not in the power of the Judge to
make any alterations, but he would like to have the two applications
in writing before him, when he should take time and thoroughly
consider them.

The Morning Star of the next day, Tuesday, May
:7« J^59' also shortly reports, under the heading of
"Sheriffs Court," that "the newly elected Judge of
this Court, Mr. R. M. Kerr, took his seat upon the
Bench yesterday for the first time." It proceeds,
however, to add reports of two cases which came
before the Court. Of the two cases thus reported,
one is to be noted as having drawn from the new
Judge, on this occasion of his very first sitting, the
characteristic remark so often repeated in various
forms by him in after years, " Litigation is far too
expensive as it is." The other case was an amusing
one of " Brown v. Tennant," the report of which is a
good sample of that amusing class of case, sometimes
arising in County Courts, and of the universal know-
ledge with which the Judges of those tribunals are
expected by some of the public to be found always
endowed.

Brown v. Tennant — MY WIFE'S PORTRAIT — THE PUZZLED JUDGE.

This was an action to recover the sum of £2 55., the balance of
an amount agreed to be paid by defendant to plaintiff for painting a
portrait of Mrs. Tennant. The sum agreed to be paid was £2 ios.,
but ;£i 55. had been paid by instalments. Mr. Buchanan for
defendant contended that the picture was not a bit like the lady.
To support this a Mr. Baker was called, and said that plaintiff was
told it must be like Mrs. Tennant, or it would not be paid for. The

118

Methods in Court

portrait was produced, and Mrs. Tennant, who occupied a seat in the
jury box, took off a very smart white bonnet and put on the head-
dress she wore at the time she sat for the portrait. Mr. Tennant
declared that the portrait was not a bit like the original. His
Honour : Oh, the husband's no judge of his wife's portrait (laughter).
Of course he never thinks it equal to the original (laughter).
Plaintiff said he had been in the profession fifty years, and had
exhibited thirty-six years ago at the Royal Academy. His Honour
did not like to be called upon to decide such a case, which was essen-
tially one for a jury. If it had been taken before a Judge who
understood all about painting it would have been different. Mr.
Buchanan said he intended to sue plaintiff for the 253. His
Honour then suggested that this case should be adjourned to
a future day and the two actions tried together before a jury.
Adjourned accordingly.

To adjourn a puzzling case for determination later
may be gathered from the above report to have been
a characteristic of the Commissioner the day on which
he took his seat in Court as a Judge. In such cases
he preferred, if possible, to get the aid of a jury,
though it is a mistake to suppose (as some have done)
that he ever insisted on one being obtained, or
refused to himself decide a case if called on.

The City Press, of the Saturday following the taking
of his seat by the Judge (viz., of May 21, 1859),
naturally gave a full account of how it was considered
that the new Judge was acquitting himself:—

FIRST SITTING OF THE NEW JUDGE AT THE SHERIFF'S COURT.

Excepting only the office of the Recorder of the City of London,
there is none perhaps of greater importance to the public of
this great metropolis in general, and the citizens in particular,
than the office of Judge of the Sheriffs Court. The recent demise
of Mr. Prendergast occasioned a vacancy, and the Court of Common
Council were called upon to elect his successor, which they did by

119

Commissioner Kerr

appointing Mr. Robert Malcolm Kerr (though by only a majority
of two) to that office.

On Monday morning, Mr. Kerr took his seat for the first time as
Judge of the " Sheriff's Court," and so soon as the doors were
opened the Court was crowded, many being anxious to see how His
Honour might behave himself upon assuming the new and responsible
office to which he had been elected. For some hours we closely
watched Mr. Kerr in the performance of his duties on that day,
and we are bound to say that they were fulfilled in the most
satisfactory manner.

Mr. Kerr took his seat at ten minutes past ten o'clock, not
as though it were the first time, but with the greatest composure,
as though it were his old seat. Messrs. Buchanan and Clarke,
two of the oldest practitioners in that Court, made an immediate
though respectful attack upon His Honour, as to the mode in which
he would conduct the business of the Court. One thought that
applications should take the precedence of adjournments and
new trials. Another gentleman on the opposite side of the
Court, suggested the desirability of appropriating a special day
for hearing adjourned cases. There is little doubt but that these
questions were intended as feelers to see how far these forensic
gentlemen might go with their new Judge without offending His
Honour. His answers in each case were most courteous and
dignified. He expressed his determination to study first, and
before everything, the public convenience, and, secondly, the
convenience of the profession. As to adjournments, he should as
far as practicable dispose of each day's business, and not begin a
system of adjournments, which was a most expensive and objection-
able course. Mr. Kerr could not, however, at once pledge himself
to any particular mode of conducting the business, but would act in
such a way as to him should prove the best calculated to meet
the wants and wishes of the public.

Mr. Kerr has evidently brought to his office a large share of legal
knowledge of County Court practice which, added to his suavity of
manner and the impartial way in which he listens to the state-
ments of the plaintiff and defendant, render him eminently
qualified to occupy the position to which he has been raised, and
we trust that Mr. Kerr may long be spared to fulfil those duties
in the same even-handed and impartial manner that he com-
menced them.

120

Deals with Existing Evils

The Court over which Commissioner Kerr had
come to preside for the next forty-two years was, to
quote the words of the City Press in an article which
will be presently set out, found by him, on his
arrival, to be "an Augean stable which it needed a
legal Hercules to clean out."

Before many months had passed Commissioner
Kerr had proved that it had now come about that
"the Court is infallibly under the government of a
Judge who is a sound lawyer, a man of business,
and that the public had ratified the act of the Common
Council, by which Mr. Kerr was installed in his seat,
by a general approval."

Some Judges set about altering the procedure of
their Court before they have had time to acquaint
themselves with the nature of its business, and at once
commence with making drastic changes which they
think must be reforms, merely because they are
alterations. Like a wise man, Commissioner Kerr
deferred all changes, with very few exceptions, till he
had occupied the Bench for a few months, and had
obtained the leisure of a vacation during which to
consider what he would do.

One thing, however, vexed his soul, being repugnant
to that intense sense of strict justice by which he was
always guided. The Court was the great resort of
usurers, who habitually had recourse to it to enforce
their extortionate demands. It was not till many
a year afterwards (we are now dealing with 1859) that
the legislature passed " The Moneylenders Act,
1900." But Commissioner Kerr was in 1859 already
possessed by the spirit which, more than forty years

121

Commissioner Kerr

later (in 1900), produced that Act. At the very first
sitting of a Court of his own, he made it clear that he
would not allow that Temple of Justice to be made the
den of these thieves. To again quote the article
which has been before referred to — " The first
evidences of Mr. Kerr's individuality were certain
decisions of cases arising out of loans granted by
quasi-societies, at exorbitant rates of interest, in which,
though granting orders for payment, he in many cases
refused costs, and enlightened lenders and borrowers
alike as to the scale of profits adopted by unprincipled
moneylenders."

The North British Daily Mail of Tuesday,
June 24, 1859, contained the following comments
on the subject : —

LOAN SOCIETIES AND THEIR PER CENTAGE.
On Saturday, at the City Sheriffs Court, the new Judge, Mr. Kerr,
was engaged nearly the whole sitting in adjudicating in actions
on promissory notes held by loan societies. In each case the
Judge created much sensation amongst the suitors by a calcula-
tion of the percentage which these loan societies charged,
irrespective of their inquiry fees, fines, &c. In the first case, on
balance of a promissory note payable in fourteen days, the Judge
said the interest charged was 400 per cent. In another case, he
calculated it to be 500 per cent. In a third he said that the
interest charged was 3,650 per cent. In a fourth he remarked, to
the astonishment of all in Court, that 7,300 per cent, was the
very moderate rate of interest charged ! In some of the cases
he dismissed the summonses, and in others, although making orders
for payments, would allow no costs, remarking that it was high
time for the legislature,1 or some authority, to step in and put a
stop to these shameful extortions from the poorer classes. In all
such cases he should refuse to commit, as he considered the
enormous interest as a kind of insurance against loss.

1 As forty years afterwards (1900) it at last did.

122

Deals with Existing Evils

The method of giving professional moneylenders
and loan societies judgment for their " pound of flesh,"
or strictly legal rights, but ordering such claims to be
satisfied by only small instalments, thus commenced at
his first sitting, was continued by the Commissioner up
to the end of his long judicial career. In about the
middle of this — namely, in 1882 — a clerk borrowed of
one of those just specified ,£5 for three weeks, giving
a bill of exchange for the loan, and a cash payment
of 155. for " the accommodation." Said the Commis-
sioner, repeating the sort of arithmetical calculation
which had characterised his very first sitting : "I find
it works out to 450 per cent, per annum." Instead
of making a commitment order as he had been invited
to do, he make an Order, that the judgment for the
debt should be satisfied of 2s. per month, so that, as
he sarcastically remarked, " the plaintiffs may get their
money sometime towards the close of the century."
There was, of course, a little caustic exaggeration in
this observation, since an order to pay £$ or loos,
by instalments of 2s. per month, if made in 1882 would
obviously only take four years and two months to
" work out," and the payments would, in any case,
at latest all have been made by some date in 1887.

In all cases such as these the idea which was present
in the mind of the Commissioner was to express disgust
and abhorrence at the acts of the plaintiffs, and to also
bring it home to their minds that such light instal-
ments as he directed could be ordered, without
injustice to them, where they had already extorted
payment of outrageous rates of interest.

While the Commissioner sometimes ordered pay-

123

Commissioner Kerr

ment by instalments which would take many years to
satisfy the debt, he used to often mention a case in
which a poor servant having incurred a small debt, went
on paying "interest and instalments" for no less than
eighteen years. This and other interesting facts in
connection with this subject and others, will be found
mentioned in a very interesting interview with the
Commissioner, forming the subject of an article in
CasselFs Magazine, of January 4, 1893.

A well-conducted newspaper is always willing to
admit to its columns arguments on both sides. It was
natural that the Commissioner's views as to money-
lenders and the interest which they charged, even if
they were generally approved by the public, should be
resented by the harpies themselves. Accordingly a
letter appeared in the City Press of Saturday,
July 2, 1859, containing arguments which are
familiar to us, and saying as follows : —

LOAN SOCIETIES AND THE PUBLIC.
To the Editor oj the " Citv Press."

SIR, — I have always noticed that the City Press was ever ready
to assist in putting down tyranny or injustice of any kind. I there-
fore appeal to you for your assistance. I am a tradesman in the
City of London, paying a rental of between .£500 and ^600 per
annum, and having, by honest industry, saved a few hundred pounds,
for the last five years I have been lending it in sums varying from
£T to £3°°- During that time I have lent to nearly 5,000 people,
and out of that large number there has been only 400 sent to prison.
I had occasion to summon four parties in the Sheriffs Court last
Friday, and had a long conversation with His Honour about the
interest charged. On one transaction it was at the rate of 170 per
cent. I will tell you the case. A man that I had never seen wrote
a letter to me asking if I would lend him ^£3, saying that he was in

124

Deals with Existing Evils

a constant situation in the City, and had been there for two years,
and that he was married, and lived in the Hackney Road, and that
he wanted a little money to buy a few clothes for his wife and
children. I answered this letter saying that if what he stated was
true I would lend the money. Accordingly I went to his shop and
afterwards to his private residence. For that I charged him is. I
then gave him three sovereigns, but made out the promissory note
for ^3 55. That was on the ist of March. Now that is four
months since, and he has only paid 35. 3d. His Honour would not
allow costs, saying that I had charged enough on the bill to pay
costs. There is, I am aware, a general feeling against a man that
lends money, but I would ask any retail tradesman in the City if he
could do business with the same risks for less profit, and I cannot
see the reason why I should not be allowed costs out of pocket.
Another case was a tradesman in business and a householder who
ran into my office two years since and said, " Will you lend me £2
for a fortnight ? What is your charge ? " " Two shillings." I gave
him £2, and he paid a few weeks' interest, and 265. off the debt,
and would pay no more. I summoned him, and he did not pay
one penny. I then took a judgment summons against him. His
Honour would not hear the case, but said, " No order." My idea
is that a man ought to pay if he can, and if he won't he ought to
be made. I am prepared to prove that the moneylenders of
London do not get so much profit out of £100 as the hatter, the
tailor, the publican, or, in fact, most other retail shopkeepers. My
idea is this : If a tradesman wants money and says, " I want ^50
for two months and I will give you ^15 for it," it is a bargain
betwixt him and me. If at the end of the time he does not pay I
believe he ought to be made do the best according to his circumstances.
There is a difference between honest poverty and an arrant knave. I
may mention this fact : that the whole of the loan societies in London
do business on nearly the same terms and receive the same sort of
assistance from the Sheriff's Court.

Mr. Commissioner Kerr had not long sat upon
the Judicial Bench when there occurred a small inci-
dent which must have sufficiently shown the public
that, while they had obtained a very excellent lawyer
as the new Judge of the Sheriffs Court, they had at

125

Commissioner Kerr

the same time obtained a Judge who was a good deal
more than a mere lawyer. The new Judge soon
showed himself to be a man of cultivation. To know
much more than the laws of England and of his
native country, to possess a useful and practical
acquaintance with the methods of business, a familiar
colloquial knowledge of modern Continental lan-
guages, and an ability to converse with ease in
them, is not universal amongst our Judges. Some
few of them, indeed, possess these gifts. Mr. Justice
Darling, for instance, to recall a recent example,
caused a little sensation by, not long ago, passing
sentence upon a French prisoner in the offender's
native tongue. The Commissioner, as long ago as
1859, tried a French commercial case in the tongue
natural to the parties, without the aid of an inter-
preter. This showed an intimate knowledge of the
French tongue, and an acquaintance with colloquial
French at least equal to that of which Mr. Justice
Darling's subsequent effort gave proof. Every one
cannot colloquially discuss a matter in commercial
French. Here is the report of what Commissioner
Kerr did in 1859 :—

MOLLETT v. ROPER.

This was an action for commission on wine sold, and the plaintiff
was nonsuited. Nothing particular transpired in the case, except
that it was conducted throughout in the French language. Both
parties being foreigners, and being unable to speak English, the
Judge examined the witnesses in French, and summed up the
evidence in that language, but gave his judgment in English. This
is rather an uncommon proceeding in an English Court of Justice,
and saved the expense of interpreter on both sides.

126

Gets Rid of " Agents "

Having at once, and as soon as he became Judge,
dealt with the abuse of the Court by moneylenders,
and prevented their employing its machinery for the
collection of usurious interest, the Commissioner
seems to have thought it wiser to wait for some weeks
before he attacked the next grave abuse. At that
time it appears, by the Articles quoted below, that
hangers-on who called themselves "agents" infested
the vicinities of the County Courts, Police Courts, and
other Courts of Justice. The writer can indeed well
recollect them himself. Commissioner Kerr deter-
mined to get rid of them out of his Court at least.

The Sheriffs Court was, to use the words of a
paragraph in the City Press which is quoted more
fully lower down, " so infested with them that it was
as unpleasant as walking through a congregation of
sewer rats to have to go there." Mr. Commissioner
Kerr determined to rid his Court of these pests about
three months after he had taken his seat as Judge.
We learn the following from the City Press of
Saturday, August 27, 1859 : —

SHERIFF'S COURT.

On Wednesday last Mr. Kerr informed the professional gentlemen
attending the Court that on and after October ist a great many
alterations would be made in the conduct of the business of the
Court. Among other things, he should insist upon counsel and
solicitors to appear in robes, or he will not allow fees. This may
seem a mere adhesion to a useless formality, but we believe it will
prove a means of protection to the public, for, doubtless, His
Honour's intention is to make a visible distinction 'between
qualified practitioners and the hungry sharks that hang about the
Courts to entrap the unwary into accepting their illegal services.

127

Commissioner Kerr

That the efforts of the Commissioner to rid his
Court of these " agents " were to a large extent suc-
cessful, incidentally appears from a paragraph in the
City Press about a year later — viz., on Saturday,
September i, 1860. Under the heading of "Touters
at Police Courts" it in 1859 remarked : —

In the investigation of a frivolous charge, made before Mr. Alder-
man Finnis the other day, a person named Empson attempted to
play the part of advocate, but was stopped by Mr. Wontner, who
said there was a system of "touting carried on in nearly every
police court that was scandalous." We have on several occasions
cautioned the public against the blandishments of these pretenders.

The above extract sufficiently shows that Touts
were there recognised to be a nuisance. Some
ten days later, on September 18, 1859, the City
Press, in the course of an article on the subject of the
Sheriffs Court, and the improvements in it which
Commissioner Kerr had already wrought during the
short period of time which elapsed between that date
(September) and his election at the beginning of the
previous May, said, as to these touters :—

The Small Debts Court was so infested with them some short
time since that it was as unpleasant as walking through a congre-
gation of sewer-rats to have to go there. Mr. Commissioner Kerr
has done all in his power to rid suitors of the annoyance, vexation,
and fraud practised by these plausible prowlers, and we can hardly
help thinking that prompt and vigorous action quite within the
boundaries of the law on the part of the authorities at the Police
Courts would make something of a clearance. Mr. Finnis made a
step in that direction in expressing his intention to disallow costs in
all cases where uncertificated persons presented themselves as advo-
cates. But this is not enough. The public need to be protected
against their lies, their promises, and their acceptance of fees out-

128

Requires Wearing of Robes

side, and such acts are violations of the law. It seems strange that
prosecutions are not instituted on the basis of evidence which might
easily be collected.

The real object of the Commissioner in requiring
that robes should be worn in his Court by solicitors
was alike to protect the public against " agents," and
to add to the dignified and orderly conduct of business
in his Court. The solicitors as a profession loyally
supported him. But of course some grumblers ex-
pressed dissatisfaction at the change. One of these
addressed to the Standard a letter, which appeared
in its columns on Monday (August 29th), in the terms
following : —

SIR, — The judicial seat of the Sheriff's Court has since the vacancy
thereof by Mr. Russell Gurney been oddly filled, and the satirical
eulogy of an old song will well apply —

" The place of all places
For hearing the cases
Decided with grace is
A summonsing Court."

It is on the present head official that I have to remark.

Yours and contemporary pages frequently disclose some of his
strange decisions, and love of innovation. This morning you pub
lished another of his fanciful alterations. He will have all the attor-
neys who appear before him wear robes, or he will not allow costs
for the attorney's attendance. Now this is a great hardship to the
profession, and to suitors who may employ attorneys who, through
inexperience of, and small practice in the Sheriff's Court, have not
provided robes. Why cannot a legal gentleman appear in his plain
dress ? Why should attorneys' managing clerks be excluded from
appearing for their principals, as they lately were? Why should
there be so much caprice in allowing the costs of attorneys ? Is it
because the young Judge will make himself famous by unpopularity,
or is it because he has a few briefless friends at the Bar, who will,

129 K

Commissioner Kerr

on each sitting day, plant themselves in Court to receive briefs or
instructions from harassed attorneys and from pseudo-lawyers ? I,
having the truth from reliable quarters, assert as a fact that it is for
the benefit of these coming men — these barristers without business
— that the new and absurd rules of the Judge are made, and I call
upon the profession to resist boldly the difficulties which are
presented to them.

Punch, too, appears from the City Press article, set
out below, to have indulged in some very feeble fun
over the matter J which most people, if they care to turn
to it, will probably agree with the City Press in con-
sidering " neither witty nor sensible, and scarcely
playful."

Both the legal profession and the lay Press,2 however,
supported the Commissioner.

In the Law Times of September 17, 1859, it is
reported that on the Friday week previous (9th) the
following discussion had taken place at the Sheriffs
Court before the Commissioner's Deputy, Mr.
Needham.

Mr. Buchanan asked leave to address a few words to His Honour
in reference to a subject of great importance. He intended to have
spoken on a former occasion, but thought it better to reserve his
remarks till a late day in the Session. He was obliged to address
His Honour, as Mr. Kerr was absent to-day.

Mr. Needham would be glad to hear anything Mr. Buchanan
had to say.

Mr. BUCHANAN. — The subject upon which I have to comment
and suggest is that of the robing of Solicitors and Attorneys
attending this Court. Your Honour will agree with me that the
adoption of the suggestions of Mr. Kerr would be fraught with
much good. People would be able to tell who was a Solicitor
or Attorney if he wore those robes peculiar to his position. Your

1 See post, p. 141. 2 See post, p. 138.

130

Requires Wearing of Robes

Honour is aware that, in the existing state of affairs, there is
some danger of other parties passing as Attorneys besides those
actually entitled and, in addition, there are numerous advantages
of which Your Honour is well aware. I have consulted with
some gentlemen in the profession who attend here, and they
quite agree with me that the respectability and dignity of the
Court would be much enhanced by some attention to reasonable
ceremonies. It is very true that at the present time there is no
robing room, but by the assistance of our good friend and chief
clerk, Mr. Osgood, we shall get over the difficulty. I may also say
that it would be very much better if the usher of the Court were
to robe. It would materially facilitate his passage through the
crowd and his presence would be better acknowledged. As we
are anxious that this matter should be finally arranged before the
October Sessions, I am compelled to address my observations to
your Honour as I may not have another opportunity before such
time, and I feel convinced that your Honour will mention my
remarks to the proper quarter.

Mr. NEEDHAM. — I quite agree with what has fallen from Mr.
Buchanan and will take care that his suggestions shall be fully
made known to the Judge for whom I sit. There cannot be the
slightest doubt that the robes distinctive of the class should be
worn, and a harmless ceremony would be productive of great
good. You may rest assured that I shall not forget this most
important subject, and shall consider it is one that should be
most prominently brought under the notice of Mr. Kerr.

Mr. Buchanan then thanked His Honour and withdrew.

As has been already explained, the Commissioner's
order that solicitors appearing in his Court should do
so in robes was really part of his plan of campaign
against " agents." Many an " agent " will pose as a
solicitor and thus get a hearing, without its being
discovered that he is not a solicitor, where professional
robes are not insisted upon. But a man who ventured to
assume the professional dress without being a member
of the legal profession at all would, to begin with, be a

Commissioner Kerr

bold one ; he, moreover, would very soon be detected
as an impostor and exposed by the solicitors in the
Court.

To allow' persons to appear on the ground that they
are " clerks" to solicitors is again practically another
way of allowing " agents " to have audience, and those,
too, men of the worst class. " Agents " of the lowest
type, and not a few professional men who have had
their names removed from the Roll of Solicitors,
usually have a " cover " or " umbrella," under the
shelter of which they practice, afforded by the name
of a low-class solicitor who has still managed to keep
upon the Rolls. Within the last few years, thanks
to the increased vigilance of the Incorporated Law
Society, individuals of the class just described have
become few. But within the comparatively recent
memory of the present writer they have been
numerous. In 1859 they must have flourished
exceedingly and been many. Accordingly Commis-
sioner Kerr's refusal to hear people other than mem-
bers of the Bar or solicitors, on the ground that they
were "solicitors' clerks," was wise. On October 14,
1859, the following paragraph appeared in the Daily
Telegraph : —

REFUSAL TO HEAR ATTORNEYS' CLERKS IN THE SHERIFF'S COURT.

In the Sheriffs Court yesterday, Mr. Kerr presiding, the case
of the South Western Railway Company v. Dillmott came on
for hearing. This was an action to recover the carriage of several
bags of artificial manure and demurrage of certain bags of the same
left on the plaintiffs premises. When the case was called on an
attorney's clerk said he expected his counsel every moment. Mr.
Charnock said defendant could not consent to wait. He was quite
ready to go on. The attorney's clerk said he would go on with His

132

Refuses to hear " Clerks '!

Honour's permission, His Honour said he had laid down a rule
not to hear an attorney's clerk, and he could not now break through
it. He would adjourn the case. Mr. Charnock applied for costs.
The case was then adjourned upon payment of costs. Subsequently
the counsel arrived, but too late, the parties having retired.

The Commissioner, while thus doing everything in
his power to clear his Court of "touts " and "agents,"
on the other hand did all he could to encourage the
appearance in it of regularly qualified solicitors. This
explains his apparent laxity of practice on a subject
which has lately attracted some attention, in conse-
quence of one at least of his successors having drawn
attention to the strict letter of the law governing the
matter, and announced an intention on his part of in
future rigorously enforcing its observance. We know
that the Commissioner was at least as good a lawyer
as either of his successors, and so may feel sure that
he had a motive for acting as he did. The reason
why he did not very strictly enforce the law as to
agents and solicitors in the particular which will be
presently mentioned was that he was desirous of
obtaining business for his Court, and, while anxious to
get rid of " agents " and " touts " of all descriptions,
sought to attract to it a good body of solicitor-advo-
cates. The presence of this always tends to add to the
business of a Court, and consequently, in this case,
to the amount of the fees received by the Corporation.
No doubt the Commissioner was not quite unselfish,
and not being paid by any salary which had been
declared to be a maximum, knew that it was his
interest to attract business to his Court, and to add, as
it were, to his labours in order to found on increased

133

Commissioner Kerr

labours a claim for increased remuneration. The
law with which he omitted to enforce a strict com-
pliance in all cases arose as follows : —

When audience in " the new County Courts " was
given to solicitors, the Bar, in alarm, sent a deputation
to the then Lord Chancellor to repeat in another form
the cry raised centuries ago by the shrine-makers of
Ephesus against the Christian religion, and with,
broadly speaking, about the same amount of success.
His lordship regretted that he could not help the Bar
further, but undertook to do what he could for it by
introducing into the clause in the Act which gave
solicitors a right of audience in County Courts words
taking away this right of audience from any " solicitor
retained as an advocate " by " the solicitor acting
generally in the action or matter." The words thus
added, while effectually preserving the right of the
Bar to alone receive instructions from solicitors who
are for any reason not able to themselves personally
appear to conduct the cases of their clients, unfor-
tunately themselves created a new difficulty. Many of
the cases tried in County Courts are actions brought
for very small amounts indeed, as low, in fact, as a few
shillings. In such cases the amounts in dispute would
not afford the smallest fee (one guinea, with a clerk's
fee of 2s. 6d. added) which a member of the Junior
Bar is allowed to take. Nor can it be reasonably
expected that a solicitor with considerable commercial
or other practice shall sacrifice it and his time by
coming to himself conduct a solitary case in which a
client of his claimed a few shillings — especially when
he might perhaps be detained all day for this one

134

Encourages " Solicitor- Advocates '"

case to come on. What is to be done in such cases ?
Practically, the only way out of this difficulty, without
bringing back the " agents," is (as the Commissioner
always did) by reading the words which forbid the
appearance of " one solicitor instructed by another
solicitor " as if they had either prefixed or added to
them words restricting their operation to "in any
case in which counsel might properly be instructed."
On the other hand, the enactment is one which can,
with the greatest ease, be altogether evaded by any
one who knows the proper method of doing so in a
way sanctioned by a practice similar to that employed
by the great " agency firms " when Common Law
business still flourished in the Superior Courts. Under
all the circumstances, and for the reasons above
disclosed, the Commissioner did not, in these small
cases, too strictly or indiscriminately enforce the
statutory provision that one solicitor should not appear
" as advocate" on the instructions of another solicitor.
The result was that a group of solicitor-advocates of
an excellent type came into existence in the City
Court — ready, for a very small fee where the nature of
the case required that such should be accepted, to act
as advocates on the instructions of any one, whether
another solicitor or not. . They were able to accept a
fee only small in each case, and willing, by reason of
the number of small cases they got during each day,
to devote themselves to the Court during the whole of
each sitting on any case requiring this. These, being
professional men, were restrained by a professional
propriety and decorum, to which mere " agents " or
" clerks to a solicitor " were strangers. Suitors got

135

Commissioner Kerr

the benefit of their services ; the Court and the
Commissioner benefited by the additional business
brought to the latter in consequence of their existence,
and the Corporation obtained profit by the additional
Court fees earned in consequence.

During the first Long Vacation that followed after
his appointment, the Commissioner prepared a new
code of rules to regulate the procedure of his Court.

The procedure of the Sheriffs Court of London was
at that time, l regulated by a special Act of Parliament
—the London (City) Small Debts Act, 1851. To bring
the rules so made into operation it was required by law
that they should receive the sanction of the Recorder of
London and of certain City officials, and also that of
one of the Chiefs of the three then existing Superior
Courts. The rules the Commissioner had prepared of
course received the sanction of the necessary City
authorities, and that of a ' 'Chief" was obtained from
Chief Justice Sir William Erie — then Lord Chief
Justice of the Court of Common Pleas.

There are still, it may be here remarked, many
local courts scattered up and down the kingdom,
each of which once, like the Lord Mayor's and the
Sheriff's Courts in London, exercised considerable
local jurisdiction, but they have all gradually fallen
into disuse, as the London Courts would certainly
have done had it not been for the prudence and
wisdom of those interested in maintaining them, in
from time to time obtaining for them new rules
of practice. Local Courts elsewhere have fallen

1 It is now provided by Statute that the practice in the City of
London Court shall be the same as in County Courts.

1*6

Seeks New Rules of Procedure

into disuse and become practically obsolete because
it is now practically impossible to get new rules of
practice made for them, while those under which they
are compelled to transact such business as they still
obtain have, by lapse of time, grown to be out of date.
New rules for such Courts cannot be made without
certain approval. An individual Judge or Judges were
formerly able to give such an approval ; indeed, it
formerly used to be usually given by the Judge or
Judges who travelled the Circuit, and presided at
the assizes for the county in which the town possessing
the Court happened to be situated. Little by little,
and by steps which it would not be of interest to the
general reader, and probably not even to the profes-
sional legal reader, to trace here in detail, the power
of confirming new rules for "Borough Courts of
Record," as they are called, has been taken away from
the Judges individually. This power of sanctioning
new rules for a local court is now vested in a committee,
of which the Lord Chancellor for the time being is the
chairman. This committee, so far as such rules are
concerned, exists, in truth, not to make new rules for
local Courts, but to prevent the making of any new rules
for them. It is the policy of " The Treasury " to drive
all the business of the country into the County Courts,
since the fees from them are paid to it, while the
fees paid by suitors in Borough Courts belong else-
where— mostly to the local Corporations — after the
necessary expenses of the Court have been paid.
Such being the policy of " the Treasury" it doubtless
is better that this policy should be carried out by a
committee, with an avowed political partisan at its

137

Commissioner Kerr

head, rather than by individual Judges. Accordingly,
some years ago, while the power of confirming rules
for local Courts was still nominally possessed by the
individual Judges, it is well known that " the word
was passed " that the Judges were expected not to
exercise their judicial function of considering and
allowing new rules, it being the desire of " the
Treasury " to get rid of local Courts by obliging their
business to be done under rules which should practically
make it impossible for these local Courts to get any
business at all, and to then either buy such Courts up
at a nominal price or to allow them to silently become
obsolete. Whether such a policy is entirely constitu-
tional may perhaps be doubted, since it is depriving
local Corporations and others of what might be a very
valuable " franchise " or right. But the growing
dependence in many ways of the Judges of the land
upon the Government of the day for promotion, and
on " the Treasury " in monetary respects, is still
more open to question upon constitutional grounds.
However, the City of London Court could, in 1859,
obtain separate rules for its own governance, and
the Commissioner accordingly did this, as already
mentioned.

Popular opinion recognised the zeal and activity of
the Commissioner, coming to the assistance of his
great learning and practical knowledge. The news-
paper press loudly praised his efforts, as will be
sufficiently clear from the following article extracted
from the City Press of September 10, 1859 : —

Our readers are sufficiently familiar with the changes that have
passed over the City Sheriffs Court, during the past four months,

138

Criticisms on his Reforms

to render anything in the shape of a narrative altogether unnecessary.
They may remember, too, that we had occasion, more than once,
to animadvert on the manner in which the business of the Court
was conducted during the presidency of the predecessor of the
present Judge. "De mortuis nil nisi bonum" is a good and
kindly motto that, like a guardian of the grave, rises up before us
at this moment, ready to approach us if we utter one untimely word.
Therefore, letting bygones be bygones, we pass from persons to
things, and simply remark that the City Sheriff's Court was once
an Augean stable, and needed a legal Hercules to clean it out.
Since Mr. Kerr's appointment in May last, the place has undergone
a wondrous change. Small cases are despatched with promptitude,
and suitors no longer bewail the terrible consumption of valuable
time, consequent on the settlement of petty pecuniary differences.
Important cases have careful attention ; discursive small talk is no
longer allowed ; nor is the Court crowded by persons attracted to
hear rough jokes, and eccentric questions by the Bench. The
Court is infallibly under the government of a Judge, who is a sound
lawyer, and a man of business ; and the public have ratified the
act of Common Council, by which Mr. Kerr was installed in his
seat, by a general approval of the manner in which justice is
dispensed there. But alas ! one can't please everybody in this
world. Your right will be called wrong : your kindness cruelty :
and your very forbearance made evidence of a testy temper.
Accordingly, Mr. Kerr awakened a little opposition as soon as it
became manifest that he did not feel himself bound, neck and heels,
to the regime of confusion that had long held sway at Guildhall
Chambers, though that had been considerably modified by the
discreet sternness of Mr. Chambers in his capacity of Judge pro tern.
The first evidences of Mr. Kerr's individuality were certain
decisions, on cases arising out of loans granted by quasi-societies
at exorbitant rates of interest in which, though granting Orders
for payment he in many cases refused costs, and enlightened
lenders and borrowers alike as to the scale of profits adopted by
unprincipled moneylenders. When the culprit at the drum-head
cried, " Strike higher ! " Pat's answer was, " Flog as I will, I can't
please you anyhow." Surely Mr. Kerr did not expect to purify
that dark nest without a little disturbance and ruffling of hostile
feathers, and we altogether mistake the man if he now budges one
line from his programme because the press and the profession have

139

Commissioner Kerr

made a partial alliance to bully him. It should be remembered
that the City Sheriffs Court is in no way governed by the County
Courts Act. It has a constitution of its own, created by the Act
passed in the fifteenth year of her present Majesty, popularly known
as the "City of London Small Debts Act." This Act empowers
the Recorder, the Common Sergeant, and the Judge of the Court
to make and issue such rules for regulating the practice of the
Court as may appear to them desirable and, as a further security for
the interests of public justice, such rules must be approved of by
the Lord Chief Justice of the Court of Queen's Bench, the Lord
Chief Justice of the Court of Common Pleas, and the Lord Chief
Baron of the Court of Exchequer, or one of them. On the basis
of this legal provision the Judge of the Sheriffs Court, having
become familiar, during four months' practice, with the defects of
the regulations which have been in force unaltered for many years
past, issued a new code, duly certified by Chief Justice Erie, which
came into operation on the first of this month. These rules and
orders are so framed as to conserve the interests of the numerous
and respectable body of attorneys practising at the Court, and they
are such as give the suitors no ground for complaint. They are
divided into three parts, and may be briefly stated as follows : —

1. Rules of practice to be used in the Court.

2. General rules and orders as to costs to be allowed to the
Barristers and Attorneys practising in the Court.

3. Some very salutary regulations as to proceedings under the
Friendly Societies Acts.

Of these rules the most noticeable are as follows : —
Where a person under twenty-one years of age (and who is in law
styled an infant) brings an action, except for wages, or piece work,
or for work as a servant, he must procure some one who will act as
his best friend, and undertake to be responsible for the costs of the
action, in case the plaintiff fails, and does not himself pay the costs
which may be awarded.

The Judge is to direct what number of witnesses are to be allowed
in the costs of the successful party, and he may allow the costs of
witnesses although they have not been summoned. In actions in
which the plaintiffs claim does not exceed £$, neither party are to
be allowed the costs of either Counsel or Attorney, unless both
parties have previously agreed to be represented by Counsel or
Attorney, and in which the fees are fixed. In the case of actions

140

Criticisms on his Reforms

referred to arbitration the costs of Counsel and Attorney attending the
arbitrator are not to be allowed without the order of the Judge.

In all cases, the costs are to be taxed by the proper officer of the
Court, according to the amount recovered, if the plaintiff succeeds,
or according to the amount claimed if defendant succeeds.

These regulations have as yet given rise to but little discussion.
They are so plain, practical, and necessary that neither enemies nor
friends have much to say about them. They will, in fact, quietly
settle the forms of procedure, and enable plaintiffs, defendants, and
practitioners to get through their causes with less hubbub and loss
of time, and with more equanimity and good temper, than have been
known in this Court for many years. They will go far to carry out
the very just and liberal views which Mr. Kerr entertains, and the
citizens of London may be properly congratulated upon having a
Judge who is anxious to make his Court what the legislature intended
by its establishment it should be — a boon to the public. But the
indignation of the profession and the crowd of grumblers is
reserved for Mr. Kerr's decisive rule, in requiring Counsel and
Attorneys to appear robed. The press, ever on the alert to protect
the interest of the public, has signally failed on its criticisms on the
reforms taking place in the Sheriff's Court. When Mr. Kerr first
broached the subject of costume in reply to Mr. Beard's application
for costs, he said, " I shall require not only Counsel, but also solicitors
to robe, or I shall not allow fees." To this Mr. Beard replied " that
he did not think his case of sufficient importance to appear in
costume." On this colloquy Punch proposes that, if robing is to be
determined by the amount of fees received, then higher amounts
ought to demand more robing, so that the pleader would be robed
with a profusion proportionate to the importance of his case and
" the general rule should be that of absurdity in proportion to the
gravity of the question." As this is neither witty nor sensible, and
scarcely playful, we may let it pass. Not so a very grave charge
made by an anonymous writer in the Standard.

The letter already quoted on p. 129 was here set
out. The article then proceeded as follows :—

It is due to the public and the profession that this invisibility,
who signs himself W., should appear in a recognisable form, with
some definite information from reliable quarters. The character of

141

Commissioner Kerr

a Judge is not to be dealt with in this method of dark insinuation.
It does not consist with the dignity of the Bench for a Judge to enter
into a paper war with one of the latter letters to the alphabet, and, so
far as the object of his charge is concerned, " W." may continue to
enjoy obscurity. But there are other interests involved besides
those of a personal kind ; and it may be valuable information to
those who are busy in criticising the new regulations of the Sheriffs
Court if we tell them it has long been the favourite haunt of black-
legs, and the principal object Mr. Kerr has in view is to deprive
those prowlers of every possible chance of bleeding unprotected
females, and taking knowing people by surprise. Naturalists say
that every animal has its own peculiar parasite, that feeds upon its
vital humours. Law, Police, and County Courts are equally un-
fortunate. Their purlieus are the resorts of landsharks and harpies,
who make it their business to entrap the unwary into receiving
their ridiculously useless attentions, and it often demands some
amount of courage on the part of folks not used to the forms of
procedure to resist the blandishing invitations of these gentry to
make it "all right" for a small consideration. When Mr. Alfred
Smee penned his account of the " Aphis Vestator" he ought to have
illustrated it with full-length figures of the oldest sinners that dodge
about Guildhall Yard on the look out for cases. They accost every
likely looking person who may be on the way to those foreboding
steps, impudently take plaints from the hands of youthful suitors,
demand money to pay fees, offer numerous superfluous advices about
forms and regulations, and in the guise of agents, friends, relatives,
attorneys, clerks, or otherwise, actually attempt to conduct cases,
and, of course, end by filching their deluded clients of fees for
which they give no equivalent whatever in the shape of service. It
would be impossible to convey to those who are not familiar with
the devices of these harpies, anything like an idea of the extent of
their operations, or of the varied ways in which their nefarious traffic
is conducted. If you were on your way to take out a summons,
what would you think of a musty personage stopping you at the
threshold and laying his hand on your arm, ask boldly, " What is the
amount of your claim ? " You might give him a kick as a proper
reply, but there are plenty of communicative, soft-headed people in
the world, who would not be proof against it, and whose legal
communion with the musty personage might end in their parting with
half a sovereign, getting their case muddled, and losing double as

142

Criticisms on his Reforms

much time as would be necessary if a clean sweep could be made of
all the streets and lobby s. These examples of the human Aphis
know just enough of the law to preserve themselves from its visitation.
They defy it to lay hands on them, even their identity is no easy
matter, for they can ape the chameleon, and we may safely say that a
wholesale system of plundering is carried on in the vicinity of the
Sheriffs Court, against which the Judge has no power of suppression.
The purport of Mr. Kerr's regulation as to costume is to aim a death-
blow at the system within the Court. He has a right to require
Counsel and Attorneys to appear robed, and that right he will enforce,
not for whim or to bestow any sham gravity on the scene of which
he himself is the honourable centre, but out of regard for public
interests, to protect the unwary, to ensure the respectability of
advocates, and possibly add to that decorum which has gradually
grown in his presence out of the chaos which reigned there before he
took his seat.

Until it shall be proved that he has private ends to serve in thus
remodelling the usages of the Court, the public are bound to
accord him the moral support and confidence due to every Judge
who dispenses the law righteously. He has shown himself to be
the enemy of oppression, extortion, and pettifogging jobbery ; now
he wages war against quasi professional scoundrelism and, if solicitors
who are not ashamed of their own name are not prepared to concur
in regulations which give them distinction as qualified practitioners,
the public must ratify by its approval reforms that have long been
required, and utterly discountenance the foolish objections that are
being urged against them. It is always a comfort to see peace
inaugurated on the site of a bear-garden ; and we congratulate
Mr. Kerr's having established order in so unpromising a place as the
City Sheriffs Court.

About the same time the Commissioner had also
prepared a Bill for the amendment of the jurisdiction
and procedure of his Court. This Bill, however,
appears to have met with so much opposition, and to
have caused such differences of opinion, that it had to
be withdrawn. This may be gathered from an article
which, during the following spring (1860), appeared in

H3

Commissioner Kerr

the City Press. That paper, on March 24, 1860,
said : —

It will be remembered that, a short time since, we called attention
to the administration of the Sheriffs Court, and to Mr. Kerr's Bill
for its amendment. We regret to hear that the Bill is likely to be
withdrawn, owing to the strong opposition offered in influential
quarters. Several deputations have waited upon Lord Redesdale
upon the subject, and practically the proposed reform is at a
deadlock. The City must remain, therefore, in a state of unenviable
isolation, in regard to the administration of the law as to the recovery
of small debts. This state of things cannot last long ; we cannot
remain behind the age in a matter so seriously affecting the activities
of every-day commerce, and even of ordinary social life. Did Mr.
Kerr deal too boldly with the deficiencies of the Court, or is there
any special interest at work to stay the hand of innovation ? Surely
it is not for the public good that so weighty a matter should be
thrust aside, so necessary a reform be obstructed.

Commissioner Kerr had, in the above and other
ways,1 speedily proved himself to be a very " strong"
Judge. Suitors at once began to resort to his Court
in considerably increased numbers. Truth to say, the
public love a " strong Judge," and when they see one
speedily discover his qualities. The majority of
Judges are, like ordinary mortals, content to be merely
respectably conventional. Such men never do any-
thing out of the common, even under exceptional
circumstances. Placed in a Court, such as the
Sheriffs Court of London was when the Commissioner
took charge of it, a man of this ordinary type would
have possessed neither the strength to clean out
this " legal Augean stable" nor the courage to do it.

1 As to the " other ways " in which the Commissioner had proved
himself a strong Judge, see the next chapter.

144

Obstacles to be Overcome

But the Commissioner succeeded not only in getting
rid of foul abuses and attracting business to his Court,
but in doing this, notwithstanding that there were two
great obstacles not previously mentioned, both which
he had to overcome. .One of these was the physical
and structural defects of the actual building in which
he had to administer justice. The other of the
obstacles to be overcome was the persistent attempts
of some members of the Common Council to discredit
and degrade him personally. Either obstacle alone
would have proved enough to stop any other man than
a " legal Hercules," as he had been well designated. But
between the time of the Commissioner's appointment
in 1859 and its entering into new premises in the year
1885, the business of his Court continued to increase,
notwithstanding that during the whole of that period
the Court itself was located in an unsuitable building,
that its Judge was involved in not less than half a dozen
formidable legal battles, and that its officials were at
variance with each other. Moreover, some success
attended the Judge in his own legal battles. Four of
these were between him and the Corporation, viz. (i)
the battle of privilege, (2) the battle of the inquiry, (3)
the salary battle, and (4) the Seal and constitutional
contest. Of these the first and last may fairly be
regarded as drawn battles. In the second and third
the Judge was victorious. Of his two battles with
the High Court he could claim that although he
formally and apparently lost one (viz., No. 5 of his
battles), or the remitted actions battle, he substantially
and in reality gained the point for the sake of which
he had in truth fought it ; while he was unquestion-

145 L

Commissioner Kerr

ably victorious in No. 6 of his battles, the battle of
the notes. Except in battle No. 5, where he "rode
for a fall," he was never even nominally defeated.

To describe the sort of building then used as a
Court of Justice will not require many words. It
was in the winter so cold as to be openly the subject
of complaint from the members of the Bar who had to
practise in it. There was, indeed, a machine in it for
supplying warm air, but it had been condemned. The
boiler underneath was described by the Commissioner
as possessing four safety valves, and thus furnishing
conclusive evidence that there must be consider-
able danger in connection with its use. The
general condition of the Court was well described by
a solicitor, who contrasted the excellent work done in
this wretched place with the building itself in a letter
worth reproducing in full, and copied from the
City Press of January 25, 1862, in the language
following : —

SIR, — As a constant practitioner in the Sheriffs Court allow me,
through your columns, to call the attention of the City authorities to
the wretched accommodation afforded by the present building for
the Judge and his staff, the suitors, and the profession. On the one
hand, the attractions to a professional man to take cases to the
Sheriffs Court are many ; business is cheaply, quickly, and efficiently
despatched. The Judge, his deputy, and every officer of the Court
from the highest to the lowest, strive to promote the convenience and
the despatch of business of the suitors and the profession, presenting
a very marked contrast to the conduct of the officials (judges
included) in several of the Metropolitan County Courts, who seem
to make it their first object to put hindrances in the way of those
who come to transact business.

During the past year I have, in the Sheriff's Court, recovered for
clients of the working class, chiefly Cornish miners, very large sums

146

Condition of Court

of money, which would not have been so quickly and cheaply
recovered in any other Court, and I am glad to bear public testimony
to the value and efficiency of an institution of which the City may be
justly proud.

On the other hand, the influences which repel one from the Court
are such as human nature shrinks from. The space covered by the
Court House is large enough, if well laid out, to afford a roomy and
convenient Court room and offices, but words are wanting to me —
and if I had them you could not afford the space — to describe the
arrangements of the present building, which must have been designed
and erected under the superintendence of the genius of " How-not-
to-do-it."

The congregation of Essex Street chapel used to boast they had
the only place of worship in London " on a first floor," and a similar
remark is applicable to our Sheriffs Court. Whatever my Essex
Street friends may say of their place, I trust the Hon. Corporation
will in mercy quickly restore us to the ordinary level of Courts of
Justice.

Often I am summoned in a hurry to attend the Court. I find the
narrow and inconvenient staircase, the landing and above all the
doorway, thronged by a crowd of persons brought there by that
mysterious law which fills all Courts of Justice with assemblages, a
majority of whom have nothing on earth to do there.

I struggle through this interested and yet unconcerned crowd,
who resent my attempts to enter as an injury, and often, let me say,
I owe my entrance solely to a heroic charge on the phalanx of my
obstructors, made by two or more officers of the Court. These
difficulties being overcome, I am in either a Turkish bath or the
Temple of the Winds. In November and December last I was
frequently in the Court until 6 p.m., and retired in that pleasing
condition in which I should have been had I gone through a
Turkish bath in my clothes. Lately we have undergone a striking, if
not a pleasing, change, and the Court has resembled a well tempered
by icy blasts, which would do honour to Dr. Reid himself. Having
passed nearly the whole of the i6th inst. in this atmosphere, and
having paid £6 for Court fees on that date, I feel I have a right to
ask why the suitors and their advisers have not better accommo-
dation. I perceive the learned Judge, while preserving the proper
judicial costume of wig and gown, is compelled to shelter his legs in
a railway rug ; and lately, the officers of the Court have one and all

Commissioner Kerr

given outward and visible signs of distress, from rheum, catarrh,
and all other evils in which flesh — sitting at the bottom of the well
with an icy draught blowing on it — is heir to. Nor in enumerating
the victims of the Court, must I forget the reporter, who is exposed
to a miniature gale blowing through a crack conveniently left in the
wainscotting of the Court room.

I am, &c.,

A SOLICITOR.

To entirely set out in full detail the story of all the
struggles between Commissioner Kerr's enemies in
the Common Council and the Commissioner, and the
means by which the Judge from time to time tried to
obtain from the Council a salary raised, as he con-
sidered, in proper proportion to the additional business
he had obtained for the Court, would be a very long
and disagreeable task. The reader would, moreover,
grow weary of the sorry story long before it was
finished. Yet a biographer who ventured to pass in
silence wholly over these disagreeable occurrences
in the career of the Commissioner would be justly
taken to task by critics of his Memoir. Yet it can do
no good, and be agreeable to no one, to reopen more
closely than is unavoidable the history of what may,
in the language of the present day, be best described
as " regretable incidents."

No trouble worth recording appears to have arisen
—if indeed any occurred at all — between the Com-
missioner's election in 1859 and the year 1865. Then
there happened an incident which was the letting out
of the waters of a long and lamentable strife. The
Commissioner had, until 1865, gone on successfully
developing the business of his Court, and apparently
content with his salary. But the Lord Chancellor, in

148

The Battle of " Privilege "

the year last named, had introduced a Bill giving an
Equity Jurisdiction to County Courts and extra
remuneration to the County Court Judges for
exercising it. The clause in it which dealt, in a
similar way, with the City of London Court had,
as was afterwards officially explained, somehow
dropped out of the Bill. The discovery that this had
happened was not made till the Bill had reached a late
stage. The Law and Parliamentary Committee of
the Common Council were anxious to obtain this
Equity Jurisdiction, but had omitted to consult the
Common Council itself. At the last moment an
interview was arranged with the Lord Chancellor.
His Lordship having from illness become unable to
see them at the time appointed, had desired that the
City Remembrancer and the Commissioner should each
submit to him a clause. This both officers did, and his
Lordship accepted Commissioner Kerr's. Then arose
an outcry. For it was said that the Commissioner's
clause, which the Lord Chancellor had accepted, not only
secured to the Court the desired Equitable Jurisdiction,
but was also so drawn that it secured that the Judge,
by whom the Equity Jurisdiction conferred by the
Act was to be exercised — that is the Commissioner
himself — should receive the maximum remuneration
made payable under the Act to any County Court
Judge. All this, it was said, had been done, behind
the backs of the Common Council ; and it was further
described as an imposing upon it of an obligation to
make an additional payment to the very officer who got
the clause inserted. The Commissioner's zeal to get the
Equity Jurisdiction for his Court was clearly no answer

149

Commissioner Kerr

to the technical complaint of breach of privilege —
in that he certainly had, by the clause giving Equity
Jurisdiction to the Court also given himself a statutory
salary. The fact was undeniable, and the Law and Par-
liamentary Committee, to whom the matter was referred
for inquiry in May, 1865, so found ; but they added that
it was desirable that the Equity Jurisdiction should be
obtained, and that the offence of breach of privilege
" had been committed without due consideration."
This view was adopted by the full Court of Common
Council. It is, however, a significant fact that the
resolution declaring Commissioner Kerr's action to
have been a breach of privilege, was seconded by a
member of the Court who, on the next occasion, took
an active and prominent part in obtaining the inquiry
which will be mentioned presently. Under the cir-
cumstances, no one will feel surprised, however, to
learn that nothing further appears to have been done
on this occasion.

In the December following (1865) the question of
what extra remuneration should be paid to the Com-
missioner was referred to the Officers and Clerks
Committee. This Committee, in order to adjust such
amount, made a general inquiry into the duties and
emoluments of the office held by the Commissioner.
They, as the result of their inquiries, at the end of
April or beginning of May, 1866, brought up a report
in effect recommending that the annual salary of
,£1,200 a year which had been hitherto received by
the Commissioner (^900 as Judge of the Sheriffs
Court, and ^300 a year for attendance at the Old
Bailey), should be increased to ^1,800 a year, being

150

The Battle of " Privilege r

an addition of ^600 a year. Of this proposed increase
of £600 a year, £300 a year was for the new
Equity Jurisdiction (that amount being the sum
paid to Metropolitan County Court Judges for
exercising the additional jurisdiction the Act con-
ferred), and (the salary of County Court Judges being
then ,£1,500 a year, as it still is) the further £300 a
year was recommended in view of the increased
business (and income) which had been secured at the
Sheriffs Court.

The same amiable Common Councilman who had
moved, on the previous occasion, that the Com-
missioner had committed a breach of the privileges of
the Common Council (a fact that was, technically, not
to be denied), now moved that the above report should
be referred back to the Committee. This motion was
seconded, moreover, by the same estimable Councillor
— himself a professional man, but not a member of the
legal profession — who had seconded the breach of
privilege resolution. He commenced by admitting that
he had a " strong personal feeling." But the Common
Council would not tolerate his going into this, and he
was, as he phrased it, compelled by it "to sink the
personal matter altogether." Nevertheless he went
into a number of vague charges, expressed in strong
language, promising to give particulars of these charges
when the Committee's report was again brought up !
On these materials the report, a summary of which
has been given above, was referred back to the Com-
mittee by a very large majority.

Emboldened by this success, the Commissioner's
enemies in the Common Council moved, two months

Commissioner Kerr

later (July 5, 1866), for a general inquiry by the
Committee into the way in which the Commissioner
discharged his duties. An active part was again, of
course, taken in the discussion of this motion by the
mover and seconder of the original " breach of privi-
lege " motion, just as they had before been active in
getting the Committee's recent report referred back.
But one of these persons — the professional man pre-
viously referred to — during the debate betrayed the
real motive secretly actuating him, by declaring that
he " believed the inquiry would be a sham instead of a
fearless and searching one, constituted as the Com-
mittee was." And yet he pressed for that inquiry!
It was granted by a majority of more than two to one.
This, doubtless, greatly satisfied those who had moved
for it.

The result of the inquiry had hardly so much gratified
them, as one of the bitterest of their number had
foretold that it would not. On November ist following
(1866) the Committee, which had been charged to
inquire into the Judge's conduct, asked to be allowed
to present their report " out of the usual order of
business." As it had transpired that the committee
had, ''after full consideration agreed upon a report,
the effect of which was, it was understood, to com-
pletely exonerate the learned gentleman from the
charges that were made against him," this request to
be allowed to present the report "out of order"
on the paper offered too good an opportunity for
dilatory tactics to be neglected. In the game of
" dilatory tactics," the Commissioner's assailants
could "give points " to the Irish Party in the House

152

The Battle of the Inquiry

of Commons of some twenty years later, and could,
indeed, afford the latter valuable instruction. For no
less than six amendments were successively moved,
suggesting that other business of various kinds should
be entered upon before the report was received. A
seventh amendment, to the effect that the election
of an Inspector of Cattle should next take place was
being " pressed for" by the individual already referred
to as so active in spite of his own professional position,
when the Lord Mayor, the hour being late, asked to
retire. His request was granted, and the Common
Council adjourned. Its next meeting would not take
place for a fortnight.

The fortnight's adjournment had a good result.
On November 15, 1866, the report was again brought
up, when the Chairman of the Committee made a
conciliatory speech, and the professional man, who
had previously taken so active a part in promoting
the inquiry, testified to the care and courtesy of the
Committee, and agreed with a statement that had been
previously made by another member of the Committee,
who had spoken strongly in the Commissioner's favour,
that, " after hearing the evidence which had been
given, the members of the Committee could have come
to no other conclusion than that which they had
arrived at." Notwithstanding all this, one member
of the Common Council thought it decent to express
himself in terms of hostility to the Commissioner.
His remarks, however, had probably an exactly
contrary effect to that which he had intended them
to produce ; for they betrayed pretty clearly both
the motives and the materials on which the attack

153

Commissioner Kerr

on the Commissioner had been originally made.
Motives, unworthy of the occasion, were in effect
confessed to, and weight lent to the statement, which
had previously been made openly in the Court, that
the whole discussion had arisen in consequence of the
Commissioner having decided a 405. dispute against
a member of the Common Council. On this occa-
sion, too, the speaker showed his animus by avowing
that a " gentleman " had been present when the
partisan who had been previously so active " had
been insulted." The materials for the attack appeared
miserable and contemptible, when it transpired that
the Commissioner, who always loved his little joke,
had, humorously, as he no doubt intended, during
the opening speech in an action against a butcher for
his boy having done some mischief while driving his
cart, said first, " who could take a butcher's man's
word," and afterwards, "we shall have no security for
human life till a few butchers' men are hung, or obliged
by Act of Parliament to drive horses with one wooden
leg ! " These jocular remarks had been solemnly and
seriously divided into three statements by the Com-
missioner which were said to be " strong evidence
of hostility against the trade of a butcher" being
entertained by him ! It had also been stated that
a defeated defendant in another case (a cab case) had
himself attended the Court at the trial, and had left
"with a thorough conviction" that "his man" was
right, in spite of the wicked Commissioner having
decided otherwise !

But the adoption of the report, exonerating the
Commissioner from all blame, in the most complete

154

The Seal and Constitutional Contest

way, did not dispose of the question which had
originally given rise to the strife. It may he recalled
that this originally was as to the additional salary
to be paid to the Judge of the Sheriffs Court for
discharging the new duties imposed on him by the
increase in the business of the Court, and by the
Equitable Jurisdiction Act. At last on May 30,
1867, the Committee reported also on this. They
again recommended an increase of the Commis-
sioner's salary by ^600 a year. After an animated
debate the Common Council adopted the report, with,
however, the increase of ^600 a year cut down to
one of ,£300 a year only, thus making the Com-
missioner's total salary thereafter ,£1,500 a year.

Meanwhile serious and numerous other troubles
had developed in various directions.

The most important of these arose out of a
provision in the County Courts Act, 1867 — by which
(sec. 35) the two Sheriff's Courts hitherto in existence
in the City were consolidated into one Court of
Record, which was to be called " the City of London
Court."

The Commissioner, in common with not a few
others, including the Law Times newspaper l and also
the Registrar of the Court, with whom, as it hap-
pened, he was, as will be presently seen, at that
time at variance in other respects, took the view
that the new enactment had the effect of altering
the entire constitution of the Court over which he
presided. From being the ancient Court of the
Sheriffs of London it, in his view, had now become
1 See Law Times of October, 5 1867.
155

Commissioner Kerr

simply an ordinary County Court — though the County
Court for the City of London. This view, assuming
it to be correct, at once involved two very important
consequences.

In the first place, all legal process issued by a
Court of Justice must bear a Seal to authenticate
it. Hitherto the seal used had been one showing
the arms of the City of London. But if the Court
were no longer merely a local Court, and now
was one of the ordinary Courts of the country, as
a new County Court, the Commissioner thought it
followed that it ought to accordingly now have a
seal like that of other County Courts, or at any
rate, some new seal on which the Royal Arms were
shown. He accordingly ordered such a seal, and
directed it to be stamped upon all "process" issuing
out of the Court.

Then arose a great storm. The Police authorities
in the same year had taken a view of some other
legislation as to the City, similar to that which the
Commissioner expressed about the seal of the
Court. The Common Council were up in arms
concerning what had occurred as to the seal of the
City County Court. The Commissioner insisted that
all "process" should bear his new seal, and threatened
to dismiss every action in which the summons was
not stamped as he had directed. The Corporation
insisted on the use of their old seal. The question
at first sight looked a petty one. But, as Mr.
Justice Willes said afterwards, it was really a " vital"
one, seeing what substantial legal questions were
in truth involved in it. Things were apparently

156

The Seal and Constitutional Contest

at a deadlock, when a certain Mr. Torr, a subordinate

official of one of the Metropolitan County Courts,

suddenly appeared as a deus ex machind, and as the

newspapers of the day at once hastily proclaimed,

"cut the Gordian knot" by obtaining from Mr.

Justice Willes an Order for a prohibition restraining

the use of the Royal Arms on the Commissioner's

new seal. The newspapers, however, were a little

premature, and had rather reckoned without their

host. For when his Order for a prohibition had

been drawn up, Mr. Justice Willes quashed it, as

not in accordance in form with certain directions

he had given, and desired the parties to appear

before him. The learned Judge just named was

one of the greatest and most profound of the lawyers

who have ever sat on the English Bench, and

certainly one of the very best of the many excellent

Judges who then occupied it. He by no means made

light of the Commissioner's point, at once seeing

and acknowledging that it had been rightly raised,

by Mr. Kerr, inasmuch as he said that " the

regularity of the proceedings of the Court was

risked, and the interests of the suitors gravely

imperilled." As appears by a report in the City

Press of April 4, 1868, the learned Mr. Justice

Willes took much trouble over the matter, and

characterised the question as "one of vital importance

to the public." Finally he gave a new Judgment

of Solomon, since he held neither party to be entirely

in the right, and thought that, just as the Government

had on their being created provided the Seals for

ordinary County Courts, so the Corporation ought

157

Commissioner Kerr

to have provided a new seal for the newly-created
City of London Court, but that it ought to have
been one approved of by the Judge of that Court.
This might, at first sight, be claimed as a victory
for the Commissioner. But it cannot fairly be
regarded as entirely so, since the House of Lords
subsequently (in I87I)1 decided, and the Court
for Crown Cases agreed likewise, that the con-
tention (the one which the Commissioner had
adopted) that the constitution of the old Sheriffs
Court had been altered by the County Court Act
of 1867 was erroneous. Under all the circum-
stances, this fight ought therefore rather to be
regarded as a "drawn battle."

The question of how the constitution of the Sheriff's
Court had been affected by the County Courts Act,
1867 (sec. 3), gave rise to another most important
consideration. The Commissioner sat at the Old
Bailey as a " Judge of the Sheriffs Court." But if
the Sheriffs Court had been abolished, and there no
longer was any Sheriffs Court, its late Judge could
not, of course, sit elsewhere under an authority which
was conferred upon him only as a " Judge of the
Sheriffs Court." So seriously did the Aldermen
regard it that they appointed a special committee
to consider and report upon it. Naturally, and most
properly, the Commissioner raised this question, and
declined to any longer sit at the Old Bailey till
the point had been determined, as it obviously was
of so very serious a nature. In the end, as has

1 In the dispute between the Registrar and the High Bailiff,
known and reported as Osgood v. Nelson (L. R. 5, H. of L. 636).

158

The Seal and Constitutional Contest

already been stated, the House of Lords determined
that the old Sheriff's Court still remains, under a new
name, notwithstanding the County Court Act, 1867.
By the next year (1869), it had become sufficiently
evident that this view would ultimately prevail, and
the Commissioner accordingly felt then justified in
agreeing that he would in future sit at the Old
Bailey. But his action in raising the question at
first was, beyond doubt, most well judged and correct.
For supposing he had, without raising the point
indicated, himself sentenced a prisoner to be hung,
or even to suffer a long term of penal servitude, or
of imprisonment, it might have caused a serious
public scandal if the question of his authority to
try the prisoner at all had been first raised by the
Counsel for the defence, after conviction and sentence,
and if it had been then decided (as the doubts of the
learned Mr. Justice Willes show that it was reason-
able to anticipate it might possibly have been) that the
constitution of the Sheriffs Court had been altered,
and that the jurisdiction of the Commissioner, as
such, was consequently gone.

Concurrently with these differences between the
Judge of the Court and the Common Council, its
officers were unfortunately now at variance with
one another. An absurd dispute had arisen between
the Registrar and the High Bailiff as to which of
them ought to discharge the duty of handing the
papers up to the Judge in Court. This small matter
had grown into a serious one. The Common Council
had removed the Registrar, and had appointed Mr.
Nelson, the City Solicitor, in his place.

159

Commissioner Kerr

As the City Solicitor was too much otherwise
engaged to regularly attend the Court personally,
the Judge had, on several occasions, appointed a
Mr. Weatherfield to discharge his duties in his
absence ; Mr. Weatherfield was sueing for his fees
for acting as Registrar, and a jury had, in the Major's
Court, expressed an opinion that they ought to be
paid, and given him a verdict for them. Mr. Osgood,
the removed Registrar, was meanwhile, by legal
proceedings, contesting the right of the Common
Council to remove him. His main contention was,
as was also the view of the Judge, that the con-
stitution of the Sheriffs Court had been totally
changed by the County Court Act of 1867 ; that,
by the statute named, a new City Court had been
created, which was an ordinary County Court, and
that the Common Council's power to remove officers
conferred by the local Act of 1852, consequently
existed no longer.

The decision of Mr. Justice Willes about the
Seal had in itself not helped matters. But it had
been quietly followed by others which, in truth, placed
things in train for a settlement. Mr. Justice Willes'
original decision itself had, indeed, settled one hotly
debated point — the proper Seal of the Court. It,
however, had left another in serious doubt — that,
namely, as to what was now the real constitution
of the "City of London Court." Was this still the
old Court, or had it, by the Act of 1867, been made
an entirely new and modern County Court? The
final decision, in the case of Mr. Osgood, the Registrar,
would settle this ; but some light as to what this was

160

The Seal and Constitutional Contest

likely to be had been already thrown upon it by
decisions already given. The Court of Queen's Bench,
and the Exchequer Chamber, had already decided that
the Court's constitution had not been changed, and
there only remained an appeal to the House of
Lords. Moreover, the point had been raised already,
and similarly decided in the case of the notorious
Madame Rachel,1 whom the Commissioner had
tried at a second trial, after the Jury at the first
trial, before the Common Serjeant, had failed to
agree. The point had then been taken that
Commissioner Kerr, having ceased to be a Judge
of the Sheriffs Court, because that Court had ceased
to exist, could not any longer sit at the Old Bailey
in his old character as a Commissioner appointed
to be so, but merely as Judge of the Sheriff's
Court.

The Commissioner was entirely dissatisfied with
the decision of the Common Council as to what
they would do about his salary. He therefore decided
to acquiesce in the proposed arrangement as to
other salary, but claimed to be compensated for
the work under the new Equity Jurisdiction Act
by the payment to him of nineteen-fortieths of the
fees received under that Act. The Small Debts
Act of 1852, by which the Sheriffs Court was
governed, provided that nineteen-twentieths of all
fees received should be paid to its Judicial Staff,
unless an agreement had been previously come to
by which it was commuted into a salary. Said the

1 As to this trial see fully post, Chap. VII.

161 M

Commissioner Kerr

Commissioner, " Grant that I did commute all fees for
a fixed salary in 1859, obviously this only included
all then existing fees, and cannot be stretched and
made extend to fees received under a new statute only
passed in 1867, imposing duties not existing in 1859,
and it cannot, in the absence of express words, making
it do so, be by any reasonable construction taken to
have been concluded or come to in 1859." To test
this question, the Commissioner in Trinity Term
(May-June), 1868, took legal proceedings in the
Court of Queen's Bench to enforce his construction
of the agreement and of the new Act. The Court
seemed to be disposed to agree with him.

At this juncture both the press and the public urged
that a friendly settlement ought to be arrived at.
The Commissioner agreed to this view, and negotiated
with the Corporation. Then the Corporation appointed
a Special Committee in January, 1869. The result
of a meeting between them and the Court was that
on Friday, June 4, 1869, the Committee reported
that an amicable settlement had been arrived at
with the Judge, and the Common Council, in due
course, adopted their report.

The terms of the arrangement thus come to in
June, 1869, are stated in a report contained in the
City Press of Saturday, June 12, 1869. They were
these : —

i. That the Judge shall sit as one of the Commissioners of the
Central Criminal Court for the trial of prisoners, on the first
Wednesday in each Session and on any other day or days when
requested to do so by the Recorder, and be ready, during the
Session, to occupy the place of the Recorder or Common Serjeant
if either be unable to attend.

162

The Battle of the Salary

2. That, in consideration, and upon the express condition, of all
claims made by the Judge against the Corporation being entirely
withdrawn, and all differences being considered as settled, he should
be paid a salary of ,£1,800 per annum, commencing from the ist
day of January, 1868, as Judge of the City of London Court, in
addition to the ^300 per annum received by him as a Commissioner
of the Central Criminal Court, and that he should be paid the sum
of £105 in respect of any such claims.

3. That, with respect to the suit pending between the Judge and
the Corporation, relative to his claim to certain fees, Counsel be
instructed on each side, and inform the Court of Queen's Bench,
that the Court of Common Council have agreed to give the Judge a
salary which he has consented to accept in lieu of fees, and that
there will be no judgment, the matter having been amicably
arranged.

4. That, with respect to the small amount now in the hands of
the Chamberlain, under the Friendly Societies Act, the Committee
do not propose to interfere, the matter not being strictly referred to
them.

5. That no claim shall be made by the Judge in respect of the
fees for the Admiralty jurisdiction, but that whatever is done by
Parliament, or the Treasury, to remunerate other County Court
Judges having Admiralty jurisdiction, for their services in that
respect, the Corporation shall either do, or concur in doing, for the
Judge of the City of London Court.

6. In any future legislation affecting the Court, either by extended
jurisdiction or otherwise, the Judge should be placed in the same
position as other County Court Judges under similar circumstances.

7. That all fees arising, or which may arise from, the jurisdiction
of the City of London Court, unless otherwise provided by statute,
be paid into the Chamber to the account, and to the credit of the
General Fund.

8. That the Judge conform to the provisions of the eighth section
of the London (City) Small Debts Act, 1852, as regards the appoint-
ment of a Deputy Judge.

9. That, considering the probable early determination of the case
of the late Registrar of the Sheriff's Court, it is not desirable that
any change shall take place in the appointment of the Registrar
pro tern, of the City of London Court, but, in the event of the
decision in the Court of Error being in favour of the Corporation,

163

Commissioner Kerr

it be recommended to the Court of Common Council forthwith to
appoint a duly qualified Registrar.

10. That the Judge, when requested, shall advise the Corporation,
or any committee thereof, as to any question affecting the City of
London Court, and that he shall, in any future legislation, concur
in the protection of the authorities, rights, and privileges, of the
Corporation, under the Act of 1852.

It was well that the terms of this great General
Peace of June, 1869, almost compelled the Corpora-
tion to leave the adjustment of the amount to be paid
for the exercise of the Admiralty jurisdiction in the
hands of the same committee as that by which the
main terms of the settlement had been adjusted. All
trouble in the past had arisen, just as all future trouble
was destined to come about, from the Common
Council, a large and somewhat unwieldy body, being
unable to understand properly technical considerations
to which a body of lawyers, such as the Law and City
Courts Committee contained, would give due weight.
In the course of the long controversy which had arisen
previously, it will have been observed that the Law
and City Courts Committee had never once reported
otherwise than favourably to Commissioner Kerr.
On one occasion, indeed, a Special Committee had
reported that there had (technically) been a " breach
of privilege," but even it hastened to add that this
had only arisen from " want of due consideration."
On the other hand, when Commissioner Kerr's chief
opponent in the Common Council had served on a
committee to make inquiry, and had been thus obliged
to go into matters by the rules of evidence, and not by
the blind chance of mere gossip and prejudice founded
on loose conversation, he found himself cqmpelled to

164

Great General Peace

agree with the rest of the committee in exonerating
Commissioner Kerr, and to even confess that the
committee could, on the evidence, not have come to
any conclusion other than that at which it had arrived.

A later arrangement, come to on March, 1875,
made the Commissioner's total salary £2,100 a year.
At this it remained for about twelve years. The
remuneration to be paid for exercising the Admiralty
jurisdiction was purposely left in abeyance for the
moment.

The great General Peace, as we have called it,
effected by the agreement to the above terms on
June, 1869, proved a lasting one, for the Corporation
gave effect to it in a broad and generous spirit, and
for some time afterwards dealt indeed with the
question of the Commissioner's salary with no mean
or niggardly hand. It at first, indeed, looked
as though this arrangement would not produce
any lasting harmony, and some appearance of
friction arose over the salary to be paid to the
Commissioner for exercising Admiralty jurisdiction.
As has been remarked, the Great Peace purposely
left the amount to be paid under this head in
abeyance, in order that it might be seen what the
Government did for the County Court Judges. When
the Government decided to make no addition to the
salaries of those Judges who sat in Admiralty, the
Corporation for the moment thought that they also
could properly act in the same way and make no further
payment. But it was pointed out that the agreement
of June, 1869, clearly contemplated some payment,
merely leaving the amount for future settlement.

165

Commissioner Kerr

And, moreover, it was further pointed out that, while
County Court Judges were bound to undertake any
work imposed on them by Act of Parliament, the
Commissioner was not a County Court Judge, subject
to the jurisdiction of the Treasury and with all the
duties of a County Court Judge. If all parties agreed,
the Commissioner doubtless could be given the exer-
cise of jurisdiction in Admiralty. If, however, the
Corporation of London desired to possess a right to
exercise this jurisdiction, they found that they would
only be let have it subject to their making arrange-
ments to properly pay the Judge by whom it was to
be administered in their behalf. In short, the Lord
Chancellor could not compel the Commissioner to
exercise an abnormal jurisdiction at the mere wish
of the Corporation and for their benefit without being
paid for so doing. This was brought home to the
City in a very practical way. The Lord Chancellor
altogether rescinded the Order giving Admiralty
jurisdiction to the City of London Court, though the
Commissioner only wished it to be suspended until
the making of satisfactory arrangements. His Lord-
ship let it also become known that he had it in
contemplation to bestow the Metropolitan Admiralty
jurisdiction upon the Whitechapel Count Courty. To
induce him to give this jurisdiction back to the City,
proper arrangements were made for the payment of
proper remuneration to the Judge by whom it was
proposed that it should continue to be exercised. It
was not, however, till March, 1875, that matters were
finally arranged. It was then agreed to give the
Commissioner .£1,000 for past services, and to pay

1 66

After the Great Peace

him £400 a year as from January i, 1875, for the
fuiure exercise by him of the Admiralty jurisdiction.
It was this addition of £400 a year to his salary as
Juage of the Sheriff's Court that made the Com-
missioner's total income from that Court now ^2,100
a jear, in addition to the £300 a year which he
received as a commissioner of the Old Bailey, in other
words, gave him a total income of ,£2,400 a year from
the two appointments.

in 1875 the total amount levied for Judge fees by
the Sheriff's Court were under £"5,000 a year. They
cortinued to increase year after year, as can be seen
from the official returns in Appendix A.

For twelve years after the arrangement of March,
18^5, the salary remained unaltered. But in 1886 the
Corporation, again acting in the same proper spirit as
they- had when the Great Peace of June, 1869, was
concluded, and on the recommendations of their
Law and City Courts Committee, generously in-
creased the Judge's salary to £2,450 from 1886,
to which a further ,£250 a year was added at
the beginning of 1887. By this time the fees
earned by the Court for Judge's fees had reached an
average of about £7,000 per annum. The Court's
total earnings by fees from suitors subsequently in
one year amounted to over £22,000, though in some
subsequent years they fell a little short of this large
amount. When this happened, the Corporation made
another considerable rise in the Judge's salary, under
circumstances which will be discussed in a later
chapter. I

1 See post, Chapter on "The Development of the City of
London Court," £c.

Commissioner Kerr

The termination of his battles with the Corporation
did not, however, yet mean for the Commissioner
entire cessation from all conflicts by him as to the
manner in which he exercised his Court's jurisdiction.
In the first of two battles on this subject which he
was destined to fight with the Superior Courts, he had
indeed become engaged even before a final adjustment
of his salary for exercising the Admiralty jurisdictbn
had been made in accordance with the Great Peice
arranged between the Corporation and himself in
1869.

A County Court Act, passed in 1867, had for the
first time given power to the Superior Courts to
entirely transfer any action pending in either of them
to some convenient County Court, for it to dispose of.
The Commissioner's first trouble with the Corporation
had grown out of the passing of the County Court Act
of 1865, by which an Equitable Jurisdiction had been
conferred upon County Courts. It was also destined
that he should (at all events apparently) come into
conflict with the Queen's Bench over a provision in a
subsequent County Court Act, passed in 1867, giving
power to transfer actions from one of the Superior
Courts to a County Court.

It had, as we have seen, been distinctly laid down
by the House of Lords in Mr. Osgood's case, that of
the Registrar whom the Corporation had superseded,
and also by the Court for the Consideration of Crown
Cases Reserved, in the case of Madame Rachel, that
the constitution of the ancient Sheriff's Court still
remained, though in a revised form, as it had been
established by the local Act, the London (City)

1 68

The Remitted Actions Battle

Small Debts Extension Act in 1852. But if the
Court was not a " County Court," how could actions
be transferred to it under the authority to transfer
to some " County Court," which had been conferred
by the Act of 1867 ? The answer suggested was
that, though the Sheriff's Court was not a "County
Court," the Act of 1867 had directed that, for the
purposes of practice, it should be considered as being
included amongst County Courts. The enactment,
however, was new, and had not yet been the subject of
much judicial decision. It was quite possible that the
decision of the Court first dealing with the point just
named would be largely influenced by the form in
which the question suggested chanced to come before
it on that occasion. If it came up for consideration
under circumstances favourable to the City Court's
jurisdiction, it would probably be held that actions
from the Superior Courts could be lawfully transferred
to the Sheriff's Court of London. If a suitor, having
some seeming grievance or injustice, of which he was
entitled to complain, first brought the question before
the Court, the tribunal might possibly be ready enough
to do him justice, by even holding, if it did not see its
way to reach that result in any other fashion, that it was
technically wrong to transmit an action to the Sheriff's
Court of London from the High Court, since the
former was not a County Court. To entertain re-
mitted actions was obviously under the circumstances
attended with some dangers, which the Commissioner
pointed out to the Queen's Bench, when opportunity
arose. To decline jurisdiction was contrary to the
general policy of the Commissioner, who always

169

Commissioner Kerr

desired to obtain jurisdiction whenever he could, and
certainly wherever any County Court possessed it.
Moreover, to decline the jurisdiction would also be
opposed to the wishes and interests alike of the Cor-
poration and himself, since the fees to be obtained
from remitted actions, bid fair, even at that time, to
become considerable. These fees, indeed, now form a
very substantial part of the revenue of the City of
London Court, which might be, still even now, very
largely increased, were proper arrangements made to
further encourage remitted actions being sent to be
tried by the City of London Court.

All these obvious considerations, we may be sure,
presented themsdves in full force to the mind of so
shrewd a man as the late Commissioner. But to get
a decision on the point, under conditions favourable to
the jurisdiction, was a delicate and difficult matter.

The ingenuity of the astute Commissioner was,
however, quite equal to the emergency. He one
day, in 1874, accordingly objected to try a remitted
action — a case of Blades v. Lawrence — upon the
seemingly technical and trivial ground that the Judge's
signature to the Order, by which the action was
"remitted" to his Court, had been affixed by an
impressed stamp, and not by the Judge with his own
hand. Further inquiry had made it appear that the
Judge, by whom the Order purported to be signed,
had never exercised a judicial mind — nor indeed any
mind at all — with regard to the matter. The clerks
to the respective solicitors had agreed that there
should be such an Order, and, having so agreed, had
got a Master to initial the agreed Order, as endorsed

170

The Remitted Actions Battle

on the summons, and thus to authorise a Judge's clerk
to affix his master's signature to the Order by stamp
in the usual form. Such a practice is common and of
daily occurrence, and the Commissioner was not the
man to be ignorant of it. However, here came an
excellent opportunity of raising the desired question of
jurisdiction without seeming so to do, and that under
cover of an almost childish technicality. The Com-
missioner seized it, and declined to try the remitted
action. The parties, in great indignation, went to
the Court of Queen's Bench for a "Mandamus" to
compel him to do so. The Court, fortunately, consisted
of a very impulsive Chief Justice, with two puisne
Judges. They at once all shared the indignation of
the parties that so trivial and untenable an objection
should have been raised by the Commissioner, and
wrathfully ordered him to forthwith proceed with the
trial of the case. Their attention was given almost
exclusively to his conduct in the matter, and very little
heed was apparently given to the really important
question of law really raised in the case. This was
exactly what was desired to get the jurisdiction of the
City of London Court assented to. And, not content
with a mere decision, the emotional Chief Justice
declared that the Commissioner had been " almost
contumacious," and directed that he should, in conse-
quence, pay all the costs. The " canny" Commissioner
of course duly paid these, but even if he did not quietly
get the Corporation, whose Law and City Courts
Committee probably appreciated what had taken place,
to directly reimburse him the amount, he probably,
thrifty Scot as he was, never parted with money with

171

Commissioner Kerr

more pleasure than when he paid these " costs." The
expenditure was repaid over and over again. For
the decision, by placing beyond all doubt the power of
the Court to entertain remitted actions, added very
substantially to the revenues of the City of London
Court (in which such fees now amount to many
hundreds a year), and. thus, indirectly, led to large
increases of his own salary !

The Commissioner had cleverly " ridden for a fall,"
and had seemingly sustained a bad one. His device
for thus getting by a side wind a decision in the
Corporation's favour, and upholding the jurisdiction
of its Court to try remitted actions, had succeeded
excellently well. The astute Commissioner had,
however, pointedly drawn the attention of the Court
to the "points against him," and to the really serious
considerations which were involved in the case. It
could not therefore have been said that the decision
had been arrived at either per incuriam, or in
consequence of the Court not having been furnished
with proper material. The Judge of the City Court
had expressly pointed out in an affidavit, which will be
found duly set out in the legal reports of the case, I that
inasmuch as the cause was, by the Judge's Order,
transferred altogether into the City of London Court,
"It may become the Judge's duty to direct further
proceedings therein, and it may be to order the com-
mittal to prison of one or other of the parties in the
action, or of a witness called and examined therein."
However, Chief Justice Cockburn, in his judgment,

1 At p. 374 of Blades v. Lawrence (1874), as reported in
L.R. of Q.B. 374-

172

The Battle of the Notes

said (at p. 377) that " In giving power to the Superior
Courts to send down cases in certain circumstances to
the County Courts, the Legislature meant to assimi-
late the London Court to the County Courts." Mr.
Justice Quain remarked (at pp. 378-9) that " The
object of the Act of 1867, by sec. 35, was to bring
that Court into the category of County Courts for all
general purposes." Echoed Mr. Justice Archibald
(at p. 379), " The object was to put the London
Court and its Judge upon precisely the same footing
as the County Courts."

For twenty years after the decision (1874) in Blades
v. Lawrence Commissioner Kerr did not again appear
before the Courts of Law as personally a party to any
legal proceedings. During the greater part of this long
period he had persisted in a refusal to habitually take
notes. By English Common Law no Judge is com-
pelled ever to take any note at all, even in a criminal
case. But in 1875 the County Court Act of that year
(sec. 5) rendered it obligatory on any County Court
Judge, before whom a specific point of law had been
raised, to take a note of the point so raised, and of the
facts and evidence in relation thereto. This, indeed, is
still the law. The statutory requirement that in such
cases a "note" shall be taken was imposed on the County
Court Judges because, in former days, a party defeated
in a County Court was not (as, in theory, he is not
now) allowed to appeal to a higher Court, except on
some "question of law," as distinguished from mere
question of fact, which had been distinctly and definitely
raised by him in the County Court ; and sometimes
considerable difficulty arose in saying whether a point

173

Commissioner Kerr

of law, relied on as a ground for appeal, had or had
not been really taken in the County Court. At the
present day a point of law, which it is wished to
appeal about, should the decision be adverse to the
party raising it, can be taken after the trial, if need be,
by a motion for a new trial, the County Court Judge's
Order as to which can itself be made the subject of an
appeal. But in those days this could not be done, so
that it was then more important than it is even now,
that, if a point of law were raised at a trial in the
County Court, the Judge should, on being asked, take
such a note of the point as the statute required.

The Commissioner was, at all periods of his life,
scrupulously careful to exactly comply with the
requirements of any statute whenever properly
asked to do so. An idea somehow got abroad, how-
ever, that he never took a " note." This erroneous
notion probably arose because under ordinary circum-
stances he had for years been in the habit of not only
saying, " I never take a note," but of, in fact, never
taking one. After the new Act was passed, however,
he did take a note wherever the statute applied and
compelled his doing it. But in such a busy Court as the
City of London Court is, or at all events was, while
Commissioner Kerr ruled there, it was a sheer physical
impossibility to take a note of every case. Case then
succeeded case there with such rapidity, and "points"
were so freely raised and at once disposed of, by a
lawyer of the ability and decision possessed by the
Commissioner that no time to " take notes " existed.
It was once said by a member of the Court of Common
Council, who had visited the Court, that he thought

174

The Battle of the Notes

the cases there were dealt with at the rate of one a
minute. This was, of course, rather an exaggeration.
But the speed in the Court was certainly great, and
would take away the breath of an ordinary Nisi Prius
Judge of the High Court, who thinks he has done a good
day's work if he tries six or eight cases a day, many
hours during which are usually spent in listening to
the speeches of Counsel. At the City of London
Court it used to be no unusual thing for the Judge to
go into Court with a list of 150 summonses returnable
that morning. Any one of these might turn out to be
a substantial case, but the list had somehow to be
disposed of during the day, for no arrears from one
day to another were ever permitted while the Com-
missioner was Judge of the Court.

That great advocate, the late Lord Russell, when still
at the Bar, once asked his junior what he was about ?
The junior having replied that he was " taking a

careful note," Russell rejoined, "What the

do you mean, sir, by taking a note? You ought
to be attending to the case, and let the shorthand-
writer do that." This, it is submitted, is exactly
the duty of a Judge — to attend to the case. In
the humble opinion of the present writer it is at least
extremely doubtful whether the practice of many Judges
of habitually " taking a careful note " in every case is
really a good one. While the Judge's whole attention
is occupied, and even absorbed, by his anxiety to get
a neat note, he misses very much that is going on
around him, his notice of which would often help him
to give a correct decision in accordance with the
justice of the case. The present writer has had

175

Commissioner Kerr

more than seven years' experience of the system which
the Commissioner prevailed on the Corporation to
adopt instead of the slow and tedious process of " taking
a note," still usual in many courts, and once invariable
in all. An official shorthand-writer was, at the Com-
missioner's instance, attached to the City of London
Court, and he takes down in shorthand verbatim the
entire proceedings (except formal speeches) in each dis-
puted case, without charge of any sort to the parties.
The benefits of this procedure are enormous. A party
is enabled to appeal, even where he has forgotten to
formally ask the Judge to take a note under the
statute. For, if there be in fact a note in a case, then
an appeal can be brought, whether such note was
taken after a request to the Judge to do it or
not. The shorthand note is invariably available
for the purposes of an appeal, since the Judge is
always willing to adopt it, and sign it as his note of
what occurred at the hearing. During the trial itself
the Judge, freed of the mechanical restraint which
having to " take a note " himself always involves, is
free to watch the demeanour of the witnesses, and the
hundred little incidents which occur in the course of
every trial. It has more than once happened to the
present writer that, when a witness has made a
statement and has proceeded — possibly to save
his conscience — to qualify in an undertone that which
he has just said — his muttered words have reached
the Bench, and led to questions which threw an
entirely different light upon his evidence to that
which it would otherwise have borne. One case has
a prominent place in the writer's recollection.

176

The Shorthand Writer's Use

Nautical witness are, almost proverbially, " hard
swearers." In a "salvage" case, where the whole
point in dispute was whether any meritorious services,
deserving to be paid for as salvage, had been rendered
or not, a skilled nautical witness had given strong
evidence in support of the plaintiff's claim for salvage.
After an unusually " strong" assertion, he, probably to
save his conscience, muttered something in an undertone.
His words reached the Bench : the Judge and the intel-
ligent shorthand-writer exchanged glances, the Judge
desired the remark to be repeated aloud, and when it
had been the shorthand -writer noted it. In the course of
the judgment the remark was referred to. The plain-
tiff's Counsel, whose good faith was entirely beyond
doubt, said, " I have no note of that : I called that
witness to prove so-and-so." The defendant's Counsel
had also not caught the words. The shorthand-writer
was then appealed to, and desired to read the
examination from a point indicated to him. In the
middle of his reading came the incriminating admission
which, on being recalled " for greater certainty," the
witness admitted having made, though only two people
in the Court, who were engaged in the case, had caught
it at the time. In the opinion of many, an expert short-
hand-writer ought to be attached to every Court. How-
ever this may be, it is certain that business in the City
of London Court could not possibly have gone on with
the celerity and dispatch by which the Commissioner
performed the work of two men, had it not been for
the aid afforded by the presence of a dexterous and
rapid shorthand-writer. Where it is not required the
shorthand note, which has cost the parties nothing, is

177 N

Commissioner Kerr

not transcribed. A less able Judge than the Com-
missioner might indeed have found it awkward to have
his every word at once recorded, but he did not find
what would, to some men, have constituted a cruel
record to be any inconvenience to him.

At about the time when the Commissioner was said
" never to take a note," his friend Sir Peter Edlin,
indignant with the County Council at what he con-
sidered the miserable inadequacy of the salary paid to
him, refused to accept what he regarded as a pittance,
and accordingly allowed his cheques for a year or two
to remain uncashed. A legal joke, which went the
round of the Courts at the time, consequently was that
we had two strange Judges, "as Edlin would not
accept cash, and Kerr would not take notes."

From time to time, however, the late Lord
Coleridge, and some other Judges, misled, probably,
by the broad assertion of Counsel that the Commis-
sioner " never took a note " — which only meant that
he did not habitually do so, and never did except in
compliance with the statute — expressed themselves
about the omission in very strong terms. At last, in
1894, tne Commissioner got an opportunity of explain-
ing his real attitude and action. On the usual state-
ment that no note had been taken by him, a rule for
a " Mandamus " calling on him to nevertheless furnish
one was obtained from the Queen's Bench Division,
directed to him, and one Hives, the successful party
in the County Court. Thereupon, the following
affidavit, explaining his practice, was made by the
Commissioner in this case of Reg. v. Commissioner
Kerr and Hives, which was heard by Justices Cave

178

The Battle of the Notes

and Wright on June 4, 1894, and is reported in the
Law Times Reports at p. 595 of vol. Ixx. Said the
Commissioner : —

Whenever a request is made to me under the section of the
County Court Act, I always take a note of the point or points of law
which are raised, and of the facts in relation thereto, and of my
decision thereon, with the reason therefor, and of my decision of
the action or matter. A copy of such notes can be obtained by any
party to the action, on the same terms as those obtaining in any
other County Court in England, and in accordance with the said
Act. In every case which is tried in the City of London Court a
shorthand note of the proceedings is taken by an official shorthand-
writer, appointed by the Corporation of the City of London for that
purpose. If any party to the action desires to obtain or use a
transcript of the whole of such notes he can obtain it. I always
read such transcript, and satisfy myself that such transcript is a
correct note of the proceedings, and I then adopt and sign the same
as my notes of the case. A transcript of any extract from a portion
of such official shorthand notes, referring to any particular part of
the case, may also be obtained, but it is not my practice to sign a
portion or extract only. These transcripts of shorthand notes are
entirely distinct from my own notes, which I make myself, as stated
above, whenever a request is made to me to take a note under the
statute.

The result of the appointment of an official shorthand-writer by
the Corporation is that, in cases where I am requested to take a
note in compliance with the Act of Parliament, it is open to the
parties to obtain both a copy of my own note, and also a transcript of
the official shorthand note, or either of such notes, at the parties'
option. In cases where I have not been requested to take a note
the parties are still at liberty to obtain a transcript of the official
shorthand note, signed by me, in accordance with the above-
mentioned practice. — Extract from Commissioner Kerr's affidavit \
as set out at p. 595, vol. Ixx.^ of Law Times Report (June 30, 1894).

The Commissioner went on to say, and in this he
was confirmed by the official shorthand-writer attached
to the Court, that no request to "take a note" under

179

Commissioner Kerr

the statute had ever been made to him at the hearing
in the County Court of the case then before the
Court.

During the argument the Counsel (Mr. Danck-
werts) who appeared for the Commissioner, and for
the Corporation of London, urged that : —

The suitors in this Court have, through the liberality of the
Corporation, a privilege which no other suitors in any Court in this
country enjoy, namely, of having a shorthand note supplied. In
addition, they have the statutory right of having the short note of
the Judge, made in accordance with the Act, whenever the request
to take a note is made. — Reported at p. 596, vol. Ixx., of Law Times
Reports.

In giving judgment in the case, Mr. Justice Cave
said : —

The learned Commissioner has stated in his affidavit what is the
course he pursues, and that course appears to be in exact accord-
ance with the requirements of the Act. In addition to that, more
is done in this Court, because, by the liberality of the Corporation,
a shorthand-writer is attached to it, who takes a note of the whole
proceedings in every case, and when, as may possibly happen, it is
impossible to comply with the statute, and raise a point of law
beforehand — because, as Lord Bramwell observed, the point may
sometimes be that there is no evidence to warrant the final decision
arrived at — then comes in the advantage of the course pursued by
the Corporation, that there is this note which is available for the
suitor in the absence of the note which, under the circumstances,
he has not been able to ask the Judge to take. He is not, in my
judgment, confined to the note so taken by the shorthand-writer.
Where the Judge does not take the note, either because he refuses
to take a note, or because the question of law is such that it cannot
be raised at the time when he can take the note, then, by leave of
this Court— a leave which in such cases would never be refused— the
appellant may show what his point of law was, and what the evidence
was thereon, by any proof that may be available for that purpose.

1 80

The Battle of the Notes

He is not bound to take a copy of the shorthand notes, because
that is not the note that is contemplated by the Act, and, in the
absence of that note, he may proceed upon his own affidavit.
When it is clear that there has been no possibility of getting the
regular note taken by the Judge, then he has the choice of either
obtaining a copy of the shorthand notes, or else to give an account,
upon affidavit, of what happened at the trial, and how it came
about that the point of law could not be raised in the ordinary way,
and the Judge requested to take a note, so that the suitor would, in
some way or other, be able to bring the facts to the notice of the
Court.

Mr. Justice Wright entirely concurred in the judg-
ment of Mr. Justice Cave.

At the conclusion of the case, and after the formal
judgments had been delivered, Mr. Justice Cave, with
the evident concurrence of Mr. Justice Wright, further
added : —

It is very important that the public should know what is the
practice that prevails in this Court. We see, from the affidavit of
the learned Commissioner, what that practice is, and it appears to
me the best possible course that can be adopted.

After pronouncements so distinct and emphatic as
the above, it might have been hoped that all questions
as to Judge's notes in the City of London Court
would have been set for ever at rest. But judge-
baiting is sport which appears not to be entirely
reserved for members of the Common Council. In a
case tried by the present writer, he had for his own
purposes taken a full note of the argument, without
being asked to do so. His object was (as had been
done) to go over it carefully afterwards in a Law
Library to see if, peradventure, there was any sub-
stantial point amongst the very numerous ones raised

181

Commissioner Kerr

by the Counsel for defendant. He had accordingly
paused from time to time to read it to the Counsel
and ask whether he had rightly appreciated his mean-
ing. The defeated defendant afterwards appealed
without success, and his Counsel having evidently for-
gotten entirely the incidents, the following occurrence
took place.

According to the Times of May 20, 1899, in
Harder v. Baker, reported shortly in that paper—

The only interest in the case consisted in the observations made
by Mr. Justice Darling on the question of shorthand notes and
Judge's notes in the City of London Court.

At the close of the case to-day, Mr. M asked leave to call

the attention of the Court to the fact that, as the Judge of the City
of London Court refused to take notes, it was necessary for the
appellant to procure the shorthand notes taken by the official short-
hand writer in that Court. In order to procure them in this case,
he had been obliged to pay a sum of £19. In addition to this
there was another hardship on the appellant, namely, that though
application had been made for the notes very shortly after the trial
had taken place, they were not supplied till several weeks after the
time for appealing had elapsed. The result of this was that the
notice of appeal had to be drawn up from Counsel's recollection of
what took place.

MR. JUSTICE DARLING said he was obliged to Mr. M for

having called attention to these facts. The rule was this, that in the
City of London Court it was the statutory duty of the Judge, if asked
to do so, to take a note. The Judge in the City of London Court, it
appeared, had not been in the habit of taking notes. This being
a grievance, it was represented to the Court of Appeal that the
Corporation of the City of London had provided a shorthand- writer
to take full notes of the proceedings. It was understood that this
was done free, but it now appeared that serious expense was thrown
upon appellants, as a large sum had to be paid for a copy of the
shorthand notes.

In the case of poor people who cannot afford the expense, a
system such as this would amount to downright injustice. The

182

The Battle of the Notes

Court of Appeal had a discretion as to the use of these notes, and
only allowed them instead of the Judge's notes because they
believed they were free, or provided at some insignificant cost. It
would now be open to any Court to whom an appeal might be
brought, to decline to receive these shorthand notes as evidence.
He, for his part in future, if he found that expense was being cast
upon the party appealing, would insist upon being provided with a
note by the Judge. Mr. Justice Channell expressed his concurrence
with these observations.

The City Press, in an article republished these
remarks in its next available issue (May 24, 1899),
and said : —

The above reported remarks on the part of the Counsel for the
appellant, and of the Judge, are likely to be misunderstood, unless
a full explanation of the position of affairs is stated. As the readers
of the City Press are aware, for several years past, owing to
Commisioner Kerr's reluctance to take notes of the case heard
before him, an official shorthand-writer, in the service of the
Corporation, has been in daily attendance at the City of London
Court for the purpose of taking an official note of the proceed-
ings. This arrangement has been found to work in every respect
admirably, and we understand that owing to the facilities it offers
to suitors and the economy of time that results, several other Courts
have adopted the same system. The Judges of the High Court too
have, on several occasions, expressed themselves in favourable terms
regarding the new departure, and the criticism of Mr. Justice
Darling is, in as far as we are aware, the only adverse comment
that has been made as yet upon the arrangement in force. The
facts of the case, we are enabled to state on inquiry, are as follows.
In cases where the appellants are poor, and consequently not in a
position to pay for the transcripts they require, the Corporation,
through Mr. Commissioner Kerr, has supplied the reports entirely
gratuitously. In other cases also a reduction has been made in the
customary charge, and in no case, it may be added, has the custom-
ary fee of one guinea for taking the note been levied. In the case
referred to in the High Court, the appellants were a Limited Liability
Company, paying a handsome dividend. Consequently, on the score

183

Commissioner Kerr

of poverty, their claim to be supplied with a transcript free could not
be entertained for a moment. The case was a lengthy one, lasting
four days, and the actual sum paid, we learn on inquiry, was
£16 145. and not, as stated in Court, £19. For this sum every
word uttered, including the very exhaustive judgment, which certainly
would not have been included had the Judge's notes been sup-
plied, was given in the transcript. If the transcript had not been
supplied, and the Judge had been compelled to take notes of the
case as it proceeded, the hearing would undoubtedly have been
prolonged to the extent of several days at least. Consequently,
though the appellants were called upon to pay £16, they not only
saved a considerable sum in costs, but were not detained at the
Court so long as would otherwise have been the case. The fore-
going facts will show therefore that the version given in the High
Courts was at best only an ex parte one, and that far from the system
in force proving disadvantageous to the suitors, it was actually a
decided advantage to them. We may add, in reference to the system
generally, that the Corporation pays the official shorthand-writer a
fixed salary, and that the fees received are paid into the coffers of the
Court.

The Commissioner himself, on taking his seat
upon the Bench a few days later, made some observa-
tions in the terms as below reported in the City Press
of May 31, 1899.

MR. COMMISSIONER KERR AND His NOTES. THE
COMMISSIONER EXPLAINS.

Upon taking his seat in the City of London Court yesterday, Mr.
Commissioner Kerr said : " My attention has been called to certain
statements made by a member of the Bar to a Divisional Court of
Queen's Bench on the hearing of a case of Harder v. Baker^ and to
certain observations made thereon by Mr. Justice Darling. As a
rule I, in common with all the Judges of England, take no notice of
the reports or comments of the Press on proceedings in Court, but
when I find statements made which are without foundation in fact,
and observations founded thereon by one of Her Majesty's Judges,
reflecting upon this Court, I think I am not only entitled, but

184

The Battle of the Notes

bound, to take notice of it, not as regards myself, but in the interest

of the suitors here. Mr. M , the counsel to whom I refer, is

said to have called the attention of the Divisional Court to the fact
that as the Judge of the City of London Court refused to take notes
it was necessary for an appellant to procure the shorthand notes
taken by the official shorthand-writer, and to pay for the same
what, in the case alluded to, amounted to a very considerable sum.
That is not so. Firstly, I have never refused to take a note when
requested so to do ; and, secondly, it is not necessary for any appel-
lant, where there are no notes, to procure the shorthand-writer's
notes, as it is open to him, in the absence of notes, to show by
affidavit what happened at the trial. The procedure in this Court
in these matters of appeal is fully explained in a case before Mr.
Justice Cave and Mr. Justice Wright, reported in the Law Times
Reports of June 23, 1894. In that case, the late Mr. Justice Cave
stated (I quote his words), that the practice of this Court appeared
to him to be the very best possible course that could be adopted.
On the assumption that the statements made by the learned
Counsel were correct as to facts, Mr. Justice Darling made the
observations to which I have referred. There is no doubt that it is
the statutory duty of the Judge, here and in the County Court,
when requested so to do, to take a note of a point of law, of the
evidence relating thereto, and of his decision thereon ; but that is
all that the Judge is bound to do, and that is what I have invariably
done. The learned Judge of the Divisional Court is reported to
have stated that my not taking a note was a grievance, and that in
consequence thereof the Corporation of London had provided a
shorthand-writer. I do not know where the learned Judge obtained
his information. I do know that the Corporation appointed a short-
hand-writer in order to expedite the administration of justice in this
Court, and the Common Council was, I believe, to a certain extent
induced to do so by the consideration that a poor suitor could then
obtain a note of his case on appeal without cost to him. The
Registrar of this Court has invariably given a note gratuitously to
any suitor who was not in a position to pay for it. I will not
presume to say one word about what Mr. Justice Darling says a
Court of Appeal will do in the future, but I cannot avoid expressing
my regret that the Divisional Court should have been misled as to
the facts, and also that it should have assumed the accuracy of
these facts in the forgetfulness, momentarily let us hope, of the

185

Commissioner Kerr

maxim, Audi alteram parte. As to the merits of the case of Harder
v. Baker, and the alleged hardships on the litigants, I will make
further inquiry of the learned Deputy-Judge who heard it, and,
if I have anything further to say thereon, I will do so hereafter.
Having just returned from Scotland, I have not had time to do so.

Between his appointment in 1859 and the opening
of the new court in 1888 the Commissioner had indeed
effected much. In 1859 he had become the Judge of
a Court whose business and reputation were alike
declining. In 1888 he saw it installed in a new
building, with enormously increased business and
jurisdiction. The increased business had been largely
obtained, as was admitted on all hands, by the energy
which he had himself brought to bear on the cases,
mingling justice with common sense in its administra-
tion. The new and enlarged jurisdiction enjoyed by
his Court was due to his ever watchful observance of
the old maxim of law, that it is the part of a good
Judge to enlarge his jurisdiction, expressed in the legal
maxim, Est boni Judicis ampliare juris die tionem.
Acting in the broad spirit of the principle involved
in the old maxim, when he saw a Bill entrusting Equity
jurisdiction to the County Courts passing through
Parliament, without the jurisdiction being bestowed
on the Court over which he presided, he lost no time,
and showed great energy, by at once seeking an inter-
view with the Lord Chancellor, and obtaining for his
Court the jurisdiction which was being bestowed upon
others whose jurisdiction and practice was similar. His
reward had, at first, been that it was said that his
energy had led him into committing a breach of privi-
lege as against the Common Council. He moreover

186

Summary of Work Effected

only tardily, and after a long fight for it, even obtained
the same pecuniary remuneration for services which he
should render in administering the Act, as was given to
others who had been hardly as zealous as he had in
obtaining the powers the new Act conferred. When
again in 1 868, jurisdiction in Admiralty cases was con-
ferred upon certain selected County Courts, he, in the
first instance, desired that his Court should be one of
those entrusted with it. But when he found that it
was proposed that the entire fees obtained under the
Admiralty Act were to be taken by the Corporation,
while his own services rendered to carry it into effect
were to remain unremunerated, he naturally was not
desirous of being burdened with the duty of adminis-
tering it. Finally when, in 1 867, the power to " remit "
actions to another Court, from which so substantial a
portion of the funds of the City of London Court are
now derived, came to be conferred upon those Courts,
he by adroitly raising the question in a form favour-
able to that end, got his Court to be declared among
the number of those to which " remitted actions"
could be sent, although, by the form in which this
was done, and the Court so largely benefited, he drew
some sneers and obloquy upon himself.

Turning from the broad principles drawn atten-
tion to above to actual statistics, we find the state
of business which was from time to time done by
the Court represented by the figures given in
Appendix A. The subject of the development of the
City of London Court during the Commissioner's
Judgeship is of such importance as to deserve a whole
chapter to itself, which will be found later on. I

1 Post, Chap. VII., on p. 242.
I87

Commissioner Kerr

Briefly stated, the income of the Court, which had
been on an average about only ,£4,000 a year in 1859,
had forty years later, in 1 899, become on average about
.£20,000 a year. The number of persons employed
in the offices of the Court from being fourteen in 1859
had in 1899 become forty. The City Press in the
issue of May 6, 1899, from which these figures are
taken, said that, " beyond all question, the growth is
due mainly to the Commissioner's legal acumen and
sound common sense, combined with the singular ex-
pedition with which he manages to dispose, day by
day, of the Cause List."

1 88

CHAPTER VI.

THE JUDGE OF THE CITY COURT DISPLAYS CHARAC-
TERISTIC METHODS, FRUSTRATES FRAUDS, AND
SPEAKS WISE AND WITTY WORDS.

A DESCRIPTION of Commissioner Kerr at
work in his Court was once furnished by him-
self in a very few words. On an occasion when,
under circumstances which will be mentioned later on,1
he invited the present writer to sit a few times as
his deputy, he remarked, in his quaint and tersely-
descriptive way, " You must come and see the regular
dustman at work to know how the rubbish is cleared
up."

In accordance with this invitation, the writer sat on
the Bench upon various days by the Commissioner's
side, and thus had an admirable opportunity for obtain-
ing material to write the present chapter. He watched
very closely, since he was there to do this, in order to
himself learn the business !

Strict and exact punctuality was always observed
by the Commissioner. Even to arrive punctually,
and to defer going into Court till letters about the
Court's business had been read, and papers and other

1 Posf, Chapter on Private Life.
189

Commissioner Kerr

matters connected with it considered and attended to,
was not tolerated by the Commissioner. He sat, he
said, at half-past ten o'clock. Practically, this neces-
sitated his arriving twenty minutes or half an hour
before the Court sat, since there are often matters
arising in connection with County Courts which it is
imperatively necessary to attend to before the day's
work begins, in order to enable clerks, bailiff, and
other officers to proceed with their duties at once.
But precisely as the hand of the Court clock pointed
to that hour, on to the Bench walked the Commissioner.
Cases not promptly answered by the parties were, if
the defaulter were a plaintiff, at once struck out, while,
if a defendant failed to appear, the plaintiff was per-
mitted to prove his case in the shortest possible style,
such as, "Does the defendant owe you ^10?" fol-
lowed, it might be, perhaps, by the question, "What's
it for ? " but more likely not so inquired into even, and
almost invariably followed by a verdict for the plaintiff,
full amount. To all defaulters in appearing the Com-
missioner had an answer, when they came later in the
day to excuse their non-attendance at an earlier hour.
An applicant asked one morning that his case might
be reheard as it was called on whilst he was standing
just outside the door of the Court. The Com-
missioner : " Well, you might just as well have been
in the Hebrides." Another applicant said that his
case was called on whilst he was standing in the road
in front of the Court. Answered the Commissioner :
" Ah, well, you should have told me and I might have
come down and tried the case in the street." A
favourite reply of his to Counsel, under such circum-

190

Methods of Commencing Business

stances, was, in good, broad Ayrshire Scotch, uttered
with a strong accent, " De non apparentibus, et de non

existentibus eadem est lex. Mr. : Can't say more."

To poor and ignorant applicants he would remark,
" Ye're too late — ye'er case is over." When, how-
ever, there was really reason to suspect that the non-
attendance of a party was probably not his fault, as
there was a serious fog, or it was known that there
had been a breakdown of a railway train, the Com-
missioner would be most lenient and patient, remem-
bering possibly the one solitary occasion on which he
was himself late, owing to the horse attached to his
vehicle slipping down in a severe frost. On an occasion
such as this he would direct a general wait, and he
himself would retire to his room, till it had become
evident that the business might reasonably be
proceeded with.

The City of London Court, though, as we have
seen,1 it is not technically a County Court, is, for
all practical purposes, the County Court for the City
of London. An admirable description of every County
Court in a metropolis, or other large town, and of this
particular Court itself, is conveyed by an amusing
article, which appeared some eleven years ago in the
National Observer.'2-

The great bulk of County Court cases are
humdrum and dull. The idea sought to be some-
times conveyed by the newspapers to the effect
that certain County Courts are very amusing places,
where much entertainment is to be obtained, is too
highly-coloured. Truth to say, a good deal that is

1 Ante, p. 76 et seq. 2 Quoted post in present Chapter.

191

Commissioner Kerr

sometimes reported as having taken place in a certain
County Court has never really happened at all ! No
greater misfortune, perhaps, can befall a County
Court Judge than that one of those highly imaginative
writers for the Press whose incomes are made by
composing over-coloured reports for the evening
papers, should fasten upon his particular Court as the
field for his labours. That unfortunate Judge will
only slowly grow to learn what a wit he is, and what
scenes of amusement his generally dreary Court often
is said to furnish ! Possibly, indeed, after a time he
even feels it due to himself, and to his reputation for
good sense, to delicately but pleasantly and kindly
suggest to his press admirer that the latter would do
well to enlarge the area of his County Court expe-
rience, and annex his services and witticisms to
some brother Judge whose name, Court, and
habitual wit and humour the grateful Judge, to
whom these qualities have been hitherto accredited,
may sometimes be even induced to betray to the man
of letters.

The cases in County Courts which afforded our
fathers and grandfathers amusement sixty years ago
seem to have usually borne a strong resemblance to
the same sort of cases as now, especially in the dull
season, fill the spare columns of the cheap evening
newspapers. The following are a few samples of
some cases which came before the learned Com-
missioner at about the time named, and when he was
first the Judge of the City of London Court.

Much spiritual stagnation existed throughout the
country on the part of the Church of England till

192

Specimens of County Court Cases

it was put an end to by a Church revival which com-
menced in the sixties. Amongst other evils of the
apathetic indifference which prevailed generally, it
brought into existence a large market to which
lazy or incompetent clerics could resort to supply
themselves with ready-made sermons. Indeed, so
notorious was this, that the writer having about the
period in question been expostulated with by a neigh-
bouring farmer for committing the then, in the country,
unpardonable offence of going to a neighbouring
church instead of his own ; and having excused him-
self on the ground that the rector there, then fresh
from Oxford, and a great friend of the late Canon
Liddon, " preached the best sermon round," received
the crushing retort, " More shame to 'un if he didn't ;
for I hear with that rich living he pays up half a
crown more each for his sermons than any of t'other
parsons in these parts." The two following reports
would seem to show that the cynical farmer, though
certainly wrong in this particular instance, was not
badly informed on the whole, as to what was a usual
custom with clergymen in those days. For, in May,
1 86 1, an action was tried in the (then) Sheriffs
Court before the Commissioner, a report of which
was as follows : —

How SERMONS ARE MANUFACTURED.

In the Sheriffs Court on Tuesday a somewhat singular case was
tried. It was that of Rogers v. ffavergal, and the action was
brought to recover £2. los. for twenty sermons sold and delivered.
The plaintiff is a retired clergyman, and the defendant is the Vicar
of Cople, Beds. It appeared, from the statement of Mr. Marchmont,
agent to the plaintiff, that defendant ordered, upon April 27, 1859,

193 O

Commissioner Kerr

a sermon upon the Thanksgiving for the termination of the Indian
War, price 25. 6d. This was sent, and subsequently defendant sent
for copies of sermons, and twenty were sent upon general subjects.
Subsequently defendant wrote for a special sermon upon the re-
opening of his church, and for this he paid j£i. A number of
letters from defendant were read by Mr. J. Hudson, C.C., who
appeared for plaintiff, in which curious questions were asked about
" stock sermons " and the like. Mr. Hudson, in answer to inquiries
from His Honour, said sermons fetched all prices — some as high as
;£5 53. A Bishop's charge or an Archdeacon's address would fetch
the latter price. He could produce a man who had written Bishops'
charges. His Honour asked what a sermon before the Lord
Mayor would cost. Mr. Hudson said from £$ 35. to ^5 55.
His Honour remarked, amid much laughter, " There is no knowing
where our Spital sermons come from." Ultimately a verdict was
found for plaintiff for the full amount.

A similar case was tried in July, 1864, and reported
as under : —

THE LONDON SERMON MARKET.

In the Sheriff's Court on Saturday, before Mr. Commissioner
Kerr, Mr. Rogers summoned a number of country rectors, vicars,
and curates for monies due to him on account of sermons furnished
by order to the defendants. The case of Rogers v. Walcot, Rector
of Ribbesford, is reported.

His debt amounted to £42 145. 6d. The amount included
harvest sermons at 25. 6d. each, others at 55. each, and one for a
special occasion at a guinea. In all the reverend gentleman had had
326 sermons. The defendant admitted the receipt of the sermons,
and that they were good ones. The verdict in this, and in the
other cases, was for the plaintiff.

Every one has heard of "a bull in a china shop/'
But it will be news to many to learn that, in strict
law, every animal, not known to be of a fierce and
mischievous nature, is entitled to have one pleasant

1 >

day s sport in such a place without making his owner
liable to pay for the damage he does ! The High

194

Specimens of County Court Cases

Court some years later so decided in the case of a
bull in an ironmonger's shop in the same way as the
Commissioner had decided in the case of the cock in
the china shop — and the china dealer would obviously
have no better legal claim than an ironmonger.
This is an instance of the soundness of the Com-
missioner's law. For he had, years previously
(namely, in 1861), arrived at precisely the same
conclusion as that at which the High Court subse-
quently arrived, for in 1861 we find the following
amusing case arose in his Court.

MARSHALL v. DELLAMORE.

In this case the plaintiff is a china shop keeper, and defendant a
livery stable keeper. This action was brought to recover ^2 8s. id.
damage sustained through the misconduct of the defendant's game
cock.

Defendant pleaded that this cock did not belong to him, and
that he was not liable.

Plaintiff stated that he carried on business in the Crescent, and
defendant in Vine Street, Minories. Upon a certain day, a game
cock belonging to the defendant walked into the shop, and knocked
some articles off a shelf, causing great breakage in the plates and
dishes on the counter.

Mrs. DELLAMORE : The cock does not belong to us.

His Honour (to plaintiff) : Can you show that the cock has a
habit of breaking crockery ? (Laughter.)

Plaintiff : I did not ask it.

His Honour : The law has been clearly laid down that it must
be shown the animal causing injury was vicious to the knowledge of
the owner. Some persons object to this law, and I confess I am
not satisfied with it. It had been decided, where a dog bit a man,
that the owner was not liable, as the dog was not shown to have
bitten anybody before within the owner's knowledge.

Plaintiff: If that is the law, I think it is high time the law is
altered. (Laughter.)

His Honour : I am very sorry, and it appears to be a hard law,

195

Commissioner Kerr

but I must nonsuit you. But if ever that cock comes into your
shop again -

Plaintiff (very emphatically): I will take care that he never
goes out again. (Great laughter, during which the parties retire.)

The last case which will be recorded here is a
strange one even for a County Court, and would
excite some considerable attention in the evening
papers even in these days : —

ADVERTISING FOR A WIFE AND SELLING THE LADY FOR
Bye v. Kowatski.

The plaintiff in this case sought to recover £$ upon a certain
I.O.U., alleged to have been signed by defendant on behalf of a
third person.

Mr. Buchanan, for defendant : If Your Honour will permit me
I can simplify matters very much, by stating that no consideration
ever passed for the I.O.U. The defendant is the head cook at the
Castle Tavern in Gresham Street, and he was acquainted with a
Mr. Camera. Now Mr. Camera advertised for a wife (laughter),
and a certain young lady answered this advertisement (renewed
laughter). Mr. Camera, however, was not quite satisfied. Either
the lady was not pretty enough, or had not money enough
(laughter), but for some reason or the other, he said to defen-
dant, "You want a wife, it is a pity the lady should be dis-
appointed (laughter), you shall have her for ^£27 " (shouts of
laughter). Defendant, thinking a good wife cheap at £27, gave
a bill for the amount. (Here the gravity of the Judge quite gave
way, and he could not but join in the bursts of laughter which greeted
the speech of the learned gentleman.) The lady, however, turned up
her nose at defendant. " What ! " said she, " marry a cook, a common
cook ? No, indeed, I have not come to that yet " (great laughter).
Mr. Camera then said to the defendant, " Well, the sale is off, and
you may have your bill back, but she may be sued, for women are
changeable, so you shall have her for ^5. Give me your I.O.U.
for £S> and if you should marry the lady, pay me." As the lady
was still obdurate, he (Mr. Buchanan) contended that no con-
sideration had passed.

196

Specimens of County Court Cases

Miss Bye, the plaintiff, said she had been barmaid to Camera,
who owed her £1$ wages, and gave her the I.O.U. as part
payment.

Mr. Camera said that the defence set up as a preliminary step
by Mr. Buchanan was not altogether correct. Witness had kept
defendant for six months and had lent him money.

Cross-examined : I did not advertise for a wife, a friend of mine
did. I thought that the defendant was hard up for a wife (laughter),
and I told him he could have the lady.

His Honour : Why don't you pay plaintiff her ^15 ?

Witness : I have been bankrupt.

His Honour : Did you advertise for a wife before or after your
bankruptcy ? (Roars of laughter.)

Witness: Before.

Mr. Buchanan then called defendant, "who denied that Camera
had kept him or lent him money. Camera wrote out the I.O.U.
himself. The facts were as stated by Mr. Buchanan, and the only
thing giving rise to the ^27 bill and the £5 I.O.U. was the lady
who was sold to the defendant (laughter).

His Honour considered that defendant had made out his case,
but it was rather hard upon Miss Bye. Miss Bye had her remedy
against Camera, but now there must be a verdict for defendant with
costs.

The Commissioner's method of trying cases was
peculiarly and emphatically his own, and so may
probably be best described in his own words. Said
he, " I wait till I can catch the point, and then /
pounce" For example, on one occasion the following
incident happened. A certain Act of Parliament,
doubtless on good grounds, renders a printer unable
to recover his bill for printing any matter to which
he has not affixed his name and address. A
member of the Common Council brought an action
against a defendant who, by putting forward certain
very plausible reasons, had induced the worthy
Common Councillor to omit his name and address

197

Commissioner Kerr

from some literary matter he had printed. The
defendant, according to the plaintiff's statement, had
undoubtedly behaved, morally speaking, about as
badly and shabbily as one man can act towards
another. But as soon as the learned Commissioner
had heard the fact that the matter, the printing of
which was sought to be recovered for, had been
printed without the name and address, he promptly
" pounced" and made an end of the case. "Can't
repeal the statute for ye," he cut in ; and after a
few more similar remarks from him, the case was
ended. He with readiness in every way facilitated
an appeal, and tried to assist the plaintiff, whom he
thought to have been cheated. But the whole verbatim
shorthand note of the trial filled scarcely more than
half a page of foolscap, and the Commissioner's judg-
ment, expressed in the few words quoted above, was
at once affirmed by a Divisional Court on the hearing
of the appeal.

A case of a similar nature was the following. A
lady required a carriage horse. Her ne'er-do-well son
purchased one of "a friend " and sent it home. The
coachman took exception to the animal, possibly because
"the young master," who was not living at home, had
received so handsome a "commission," from his rather
"fast pal" who owned the horse, that the coachman
had been on this ground refused by the seller his usual
"guinea for luck." At least such was the suggestion
of a wordy young Counsel who opened the case at
inordinate length, and announced his intention of
calling most of the Professors from the Veterinary
College, as well as several other eminent London

198

Methods in Court

"vets," with voluminous hints as to how he should
cross-examine that coachman, and that this " im-
portant case " would last at least three days ! The
wily advocate for the defendant interposed with a
few words, suggesting that the real point was
whether the son had any authority to buy, and
intimated that he would give up every other
question. " Now, then, prove the son's agency,"
ejaculated the Judge. The rhetorical young Counsel
resisted, but " the Court " was obdurate. The
plaintiff's counsel then tried to prove the authority of
the son to buy the horse for the mother, but so failed
that in desperation he called the ne'er-do-well son
himself. The latter had to admit that he had no sort
of authority, and sent the horse home of his own head,
induced by the fact that, as he put it, he could " do
a friend a good turn, and also make a nice bit for
himself." The young Counsel retired after his case
had occupied about three-quarters of an hour, two-
thirds of which had been occupied by his own
eloquence, in place of the " three days" he had
foretold ; the professors were set free to attend to
their professional duties at the Veterinary College ;
while the Judge dryly said, as was his wont, " Next
case ! "

Such being his own methods, it need hardly be
said that the Commissioner exceedingly disliked long
speeches in flowery and ornate language, and a party
or an advocate who would not ''come to the point,
man," as he expressed it. How often have the reader
and the writer alike both wished at times, when com-
pelled to sit still in silence and hear a wordy preacher

199

Commissioner Kerr

"talking round" his subject— wished that the laws
against brawling would permit them to "cut in" and
brusquely but politely say, like Commissioner Kerr,
" Come to the point, man."

Sometimes indeed the Commissioner would sarcas-
tically remind Counsel that the jury only got is. for
listening to four speeches, and that this was hard
upon them, as it was only 3d. a speech. On one
occasion the jury l complained that learned Counsel
was telling them the same thing two or three times
over. The Commissioner drily remarked, " Ah, well,
there is a tradition amongst the Junior Bar that a
fact can be only got into the head of one juryman
at a time." Turning to the Counsel he said, " You've
said it three times ; now say it three times more, and
that will be once for each of the jury and once for me."

Upon the subjects of the rights of advocates to
cross-examine witnesses, the right of the public to
protection against improper cross-examination, the
question whether the division of the responsibility
between the counsel and the solicitor for needlessly
offensive cross-examination, and the kindred and
much-debated matter as to whether the two branches
of the legal profession ought not to be amalgamated,
the Commissioner clearly expressed his views in the
following letter, published in the Pall Mall Gazette, of
January 7, 1892. This is as follows :—

"SiR, — In answer to your inquiries as to cross-examination, I
have to say that I do not consider the present system open to the
objection that witnesses and persons unconnected with the suit are

1 It will be remembered that a County Court jury consists of five.

2OO

Views about Cross-examination

insufficiently protected. The judge has full power to stop exami-
nation which he considers is irrelevant to the inquiry before him.
The difficulty is to see clearly what may prove relevant. The
character of the witnesses is an important element in considering
whether their statements are to be believed or not, and this can
only be ascertained by cross-examination. It is undoubtedly the
duty of the judge to stop cross-examination which he sees is pursued
for any other purpose than to get at the truth of the matter in
dispute, and he may by judicious observations make the counsel
who unduly persists feel that he is prejudicing his case with the
jury.

"2. I do not think that the distribution of responsibility between
counsel and solicitors affects the matter. Neither the barrister nor
the solicitor can try beforehand the truth of the statements made to
them, which become the subject of cross-examination. The pro-
priety of putting offensive questions must be judged of by the cir-
cumstances of the particular case. It is a very serious responsibility
which is exercised by some counsel with conspicuous good taste and
good feeling, and such men have their reward in the confidence
with which they inspire judge and jury. Others, unhappily, use
their power in a cruel manner. I do not think they are so successful
as their more conscientious rivals ; but, unfortunately, they are
popular, as they gratify a base feeling which makes some people
enjoy seeing a witness worried. In a sentence, our system is not in
fault ; it depends on the good feelings of counsel and the firmness
of the judges to make it work well.

" 3. I am strongly in favour of the amalgamation of the two
branches in this sense, that there should be a special examination to
qualify for admission to each, and that it should be open to a man
who has proved his fitness to practise either as a barrister or
solicitor, or as both, to do so."

It will be seen that while the letter clearly reflects what one might
expect to be the feeling of a strong judge who was always noted in
his own court for seeing fair play, it no less clearly points out the
abuses which are notorious, and which do not always receive the
censure they deserve. At the same time it favours all important
reform. Mr. Commissioner Kerr distinctly pronounces that the
present system is open to the objection that witnesses and persons
unconnected with the suit are insufficiently protected. With all that

201

Commissioner Kerr

has been said about the "weakness" of many judges and the
" bullying " of some counsel he agrees. He even thinks that the line
taken by the Times, "though it goes very far, does not go far
enough." But he does not attribute the fault specially to the
distribution of responsibility between counsel and solicitor. He
rather blames the inadequacy of the professional tribunals — the
Incorporated Law Society and the Benchers of Lincoln's Inn.
" Q.C.'s are Benchers," writes the learned Commissioner, " and
Benchers are not likely to look after Q.C.'s." And he makes a
practical suggestion. "We want a ' conseil de discipline.'" As
regards the proposed amalgamation of the two branches, he points
out what is undoubtedly a consideration limiting the effectualness of
that reform for the purpose now in view ; the fact that even in a firm
of solicitor-barristers on the American and colonial lines, " there will
and must always be an advocate for court, and an adviser for
chambers."

The force of this objection, it seems to us, may easily be exag-
gerated. The responsibility would not be absolutely concentrated,
but it would at least be less divided than under the present system.
The pressing question is : Does this division increase the mischief
complained of?

On one occasion a Barrister, who was a terribly
verbose practitioner, discovered that one of the jury
trying the case was fast asleep. He forthwith roundly
rated those who were still awake for taking so little
interest in the case. Interposed the Commissioner,
"Ye just remind me of a meenester in Ayrshire,
who was lecturing his congregation for not coming
to kirk, and remarked, 'Those of ye who do come
are asleep, bar the village idiot,' when a voice said,
'If I'd nae been an ideot I had been asleep too.'"1

While generally jocular at the expense of others,

1 This story about the preacher and the village idiot is also a
favourite one with the wise and witty Lord Young, a Scotch Judge,
and Bencher of the Middle Temple, who was a venerable friend of
the late Commissioner's.

202

Anecdotes and Sayings

the Commissioner could appreciate and enjoy a good
repartee even at his own expense. Thus on one
occasion an advocate with a beard and moustache
(which he then hated), appeared before him. " How
can I hear you, sir, if you cover up your muzzle like
a terrier dog," he asked? "Well, I had rather be
an English terrier than a Scotch cur," was the reply.
The Commissioner chuckled, and merely remarked,
"Get on." Similarly, he greatly enjoyed the joke
when Mr. Justice Hawkins (now Lord Brampton),
on learning that the Commissioner was to be made a
Serjeant and then a Judge, said that this was impos-
sible, as no Judge would ever like to call him " Brother
Kerr." Nor did he take it amiss when, in answer to
some remarks from him as to the small fees taken at
the Scotch Bar, a favourite of his retorted, " Doubt-
less that is why so many Scotch Barristers come to
England."

To a party in person, who persisted in irrele-
vant " talk " about his case, the Commissioner has
been known to remark, " Don't talk, sir ; hold
your tongue. Get into Parliament, or the County
Council, or some other talking-shop, if you want to
talk, but you must not do it here ! " To young
Counsel, needlessly indulging in irrelevant " oratory,"
addressed to the "gallery," he would remark pun-
gently, " Every young man at the Bar nowadays
thinks he's a Demosthenes ! "

While lengthy and oratorical addresses annoyed
him, he also much resented the multiplicity of speeches
allowed by modern legislation. In a review of one
of his annotated editions of the Common Law Pro-

203

Commissioner Kerr

cedure Act, 1854, he had betrayed this dislike by the
remark (erroneously) that he considered that the right
to sum up given by the Act did not extend to cases
tried without a jury. The Jurist had at once taken
him to task for expressing this view, and questioned
its correctness. l There is, however, no doubt at all —
for the Court of Appeal has expressly so decided—
that there is no right to "sum up," or make a con-
cluding speech, on the part of the Counsel for the
defendant in a County Court case. The Commissioner
always strictly enforced this rule. Moreover, it is the
practice with some Counsel not to face their difficulties
boldly, and when they have no case for the defendant
to say so. These often ask to postpone their speech
till the conclusion of their evidence. They proceed
to call their client, who usually, as there are no
pleadings in the County Court to confine the trial
to specific questions (or issues), proceeds to tell
a rambling and discursive tale, after which his
Counsel addresses the Judge in an equally discursive
speech, dealing with everything in general and nothing
in particular whatever. An attempt to adopt this
course always irritated the Commissioner much, and
as it sometimes did injustice to the client by making
him believe there was " no case " for the defendant on
whose behalf it was sought to follow it had no real
case, it was bad advocacy to ask him to permit it.
The best way to gain his favourable opinion used to
be to open a case in as few words as possible, es-
pecially if they were direct and "to the point."
To lay down to him as "law" that which is, in

1 See ante, p. 59.
204

Anecdotes and Sayings

truth, " bad law," or, in other words, that which is not
law at all, has always an irritating effect upon a real
lawyer ; and, as a rule, the better lawyer a Judge is,
the more will be his irritation and annoyance at " bad
law " being addressed to him, as if he were unac-
quainted with the real article. The Commissioner
was himself an excellent lawyer. To a young bar-
rister laying down " bad law" to him, and persisting
in his argument, notwithstanding his obvious dissent,
the Commissioner would impatiently say : " I am
not here to lecture on law, otherwise I should
be here all day and night, teaching the profession
their business." He once, indeed, made an enemy
for years of a solicitor, who was trying to make him
accept law which the speaker insisted was correct,
although the Commissioner had intimated that it was
not, by impatiently exclaiming, " Pshaw ! Go and buy
a shilling Guide to the Law ! "

While "law" rests on principles, and the Com-
missioner was accordingly impatient of those who
showed themselves ignorant of legal principles, he
was equally impatient of practitioners who had
failed, as he thought, to make themselves familiar
with the "practice" existing at the moment, by
taking the trouble (which is all that is needed) to
" look it up." " The practice " — indeed does not
rest much upon principle, and mostly varies from
time to time, to meet what is, at the moment,
judged to be convenient — but can always be easily
ascertained with little trouble, and moreover usually
with just the same amount of scientific knowledge
about the subject in hand as is generally needed

205

Commissioner Kerr

to enable one to intelligently turn up the day of
the month or the age of the moon in an almanack.
To a practitioner who had neglected to "post him-
self up " in the prevailing practice he would say with
irritation : " Very few solicitors know their business
in the present day. They do not trouble even to
read the Rules and Orders which govern the Court's
procedure. They act according to what they call
'the instinct of the heart.'"

Great, too, was his dislike of " counter-claims," which
he used to often describe as " the modern substitute
for the sham pleas of my younger days." A "sham
plea" was one which used to delay the proceedings
and gain time without the risk of adding to the costs.
To a claim for a just debt a defendant would answer,
not denying it, but alleging that he and the plaintiff
had agreed that he should deliver to the latter, in
satisfaction of his claim, a brown bear, or a black
mare, or some other fancy article. Of course, this
statement was all nonsense, but it gained time, and
the plaintiff could not incur any expense in the mean-
while in preparing for trial, as his debt was admitted,
and the burthen lay with the defendant to prove the
plea, not with the plaintiff to disprove it.

Many a useful hint for the conduct of cases could
be picked up by an advocate apt and ready at learning
from the astute and experienced Commissioner. One
of his favourite pieces of advice used to be somewhat
as follows : —

" I will give you a hint which will be of service to you for the
rest of your professional life as a solicitor. Always let evidence

206

Anecdotes and Sayings

of prejudice go in without objection, because it does more harm
to the man who imports it than to the person whom he tries to
damage by the prejudice."

A hint of a somewhat similar nature was given
to the present writer years ago by Lord Brampton
—under the name of Hawkins — one of the most able
cross-examiners and defenders of prisoners, against
too readily taking objection to a question put by the
other side. "Take care how you object," said he.
Then he told how, when still a young man at sessions,
with a serious case to defend, yet having no defence,
he once, on a purely technical ground, while ever on the
look-out for a " break down," forced a magistrates'
clerk to be put into the witness-box by the prose-
cution, to prove a purely formal matter ; how, having
got him there, he cross-examined him, and made him
practically admit that he " led his magistrates by the
nose " ; to also admit that they had refused bail by his
advice, and that a Judge at chambers had afterwards
granted it, although the witness had come up all the
way to London from the country to oppose it. Then,
asked the bold cross-examiner, "You were in the room,
sir, and didn't you hear the learned Judge say there
was not a rag of a case against my unhappy client ? "
The prosecuting Counsel objected to this question, and
the collective wisdom of Quarter Sessions ruled it
could not be put. But the Jury had heard it, and
they had heard the answer stopped. The dissatis-
faction this induced in their minds made them acquit
the prisoner. Leaving the Court that day, the
prisoner's Counsel asked his opponent, " Why did
you object to that question ? " The latter indignantly

207

Commissioner Kerr

protested that his adversary, when he asked it, must
have known that it could not be put. " Yes, I did,"
was the answer ; " but I knew you, too, and felt sure
you would object at the right time. But you should
have waited for the answer, as it would have been
'No'!!!"

In a recent number of T.P's Weekly (January 2,
1903), it is said of the learned Commissioner, with
great truth, that he was " Fatal to moneylenders,
tally-men, and all oppressors generally ; he protected
the interests of the poor and the harassed suitor."
His methods with moneylenders may be partly
gathered from an earlier page.1 The paper just
quoted asserts that, when he gave a judgment that
a moneylender should receive payment, but only by
small instalments, he has often been known to add
that " Shylock might get paid during the present
century, but he " (the Commissioner) " doubted it."
Some remark to this effect certainly did once fall
from the learned Commissioner. He on one occasion
ordered payment by instalments of a penny a month,
which it would take 385 years to complete. He
moreover also sometimes refused " costs" to the
Solicitor for an extortionate " cent.-per-cent. " money-
lender, as the same paper suggests, and the refusal
would probably be accompanied by the remark,
"Your client's had too much already."

Strong as was his dislike for professional money-
lenders generally, the class of the fraternity who were
the objects of his particular aversion were the pests
who make a practice of pressing loans upon clerks

1 See ante, pp. 1 2 1 et seq.
208

Dislike of Domestic Credit

in some Government office or department, where
they know the clerks to be forbidden by the regulations
of the office to contract loans, and who then "put the
screw on " by threatening to expose the transaction
to the heads of the department. The victims of this
sort of treatment were generally amongst the "poor
and the harassed " whom T.P.'s Weekly rightly says
were always the objects of the Commissioner's pro-
tection. Another class with whom the Commissioner
much sympathised and ever tried to help were the
judgment debtors brought before him on stale
judgments.

Not only "tally-men" (a name strictly proper only
to travelling dealers in goods to be paid for by
instalments), but all who sell goods on the instal-
ment system of credit to people who, for the most
part, either do not want them or, if they do, are
made to pay extravagant prices in view of the
" easy terms," were special objects also of the
Commissioner's dislike. He held strong views that
people ought not to buy, or to be tempted by
others to indulge in, things which they really cannot
afford. This often made him say, " Credit is
the curse of this country ! " with great emphasis.
But just as a little boy once declared that he had
heard the clergyman say in church, " There is no
God," justifying his assertion by the simple process of
leaving out the prefix, " The fool hath said in his
heart ; " so some people, by leaving out the context
of his remarks, make the Commissioner guilty of the
absurdity of wishing that the great system of com-
mercial credit, on which the business of this country

209 p

Commissioner Ken-
is so largely built up, were abolished. He, of course,
when thus speaking, referred to domestic credit.
Thus, he used to remark : "I pay for my coals
down on the nail — why should not everybody else?
I would abolish credit altogether in this country if I
could."

On one occasion, when the question of giving credit
was being discussed, he said, " I would fine every
man who gave credit 5 per cent, upon the amount
incurred, and I would very soon pay off the National
Debt."

Said he, on another occasion, when the question of
welshing a betting man was being discussed, " I fail
to see why a man should be welshed because he
does not pay his betting debts. If every man in
the City of London who did not pay his debts was
welshed we should have the grass growing in
Cheapside.

The Commissioner's pet theory against giving
credit once furnished occasion for a most amusing
incident. One day a plaintiff was seeking to recover
^13 odd for milk supplied. The Commissioner said
to a milkman : " I thought every one paid for his
pennyworth of milk each day as it was delivered."
Plaintiff: "Oh no, they don't, your Honour. I
serve your Honour's house with milk, and they have
not paid me for two months." The Commissioner :
" Ah, well, you'll not supply me any more ; you will
be watering my milk to make up for this ^13 you are
going to lose."

The views about domestic credit made the Com-
missioner disapprove emphatically of every form of

210

Dislike of the " Tally System "

purchase on what is euphemistically called the
"deferred credit" system, whether it were by the
" tally " system or the " Hire Purchase " one. He
used to say to persons who had made purchases
on either of these systems, both of which are
forms of " deferred payment," words of warning
somewhat as follows : " Never sign a hire-purchase
agreement. They are generally snares and de-
lusions. In fact, never sign anything for the rest
of your life." His view was that either the inferiority
of the goods, or the excessive number of payments
exacted in all cases of this class, made the purchasers
unwittingly pay far more than the article acquired was
really worth.

In old days, the tally system was generally applied
to Bibles, watches, female finery, and such like. It
has now been extended to cycles, railway tickets,
sewing machines, and various other articles. The
Commissioner's objection to these systems was not
alone the high price and inferior quality. He thought
also that, while it was very wrong of people to
purchase things which they could not afford, it was
equally wrong of others to try to tempt them to do
this, and that if the latter lost money over such a
transaction it only "served them right." The views
which he held on these matters to the end of his life
were the same as he had entertained early in his
career. One of such cases had come before him as
early as November 27, 1859, and before he had been
long upon the Bench. The following dialogue then
occurred : —

211

Commissioner Kerr

Parry v. Young.— THE TALLY SYSTEM EXTENDED.

This was an action by the Plaintiff, as Manager of an association
calling itself "The Practical and Devotional Family Bible Asso-
ciation," for £2 25., the balance of £2 123. for a family Bible sold
to the defendant.

The Plaintiff said that the association was formed by some three
or four gentlemen for the purpose of supplying Bibles, to be paid
for by weekly payments.

His Honour asked if the Tally System were applied to the Bible
trade.

Plaintiff : We take weekly payments.

His Honour supposed a profit was made out of them. He
thought this should not be. It seemed a very high price for a
Bible. He knew that Mr. McPheen, of Glasgow, used to sell
a very handsome Bible for 203.

Plaintiff : But ours is illustrated, and contains lengthy
comments.

The Defendant said that he agreed to pay as. a week, and
had paid a deposit of ios., but finding that the Bible was not
bound in real morocco as represented, he refused to pay more
than 275. in addition to what he had already paid.

His Honour, on looking at the Bible, said he thought it was
not real morocco.

Plaintiff: Indeed it is. It's goat-skin.

Two witnesses were called for the defence, one a boot-maker
of forty years' standing and the other a bookbinder, who both
swore that it was not real morocco. One said he sold the book
from 303. to 405., according to the style of gilding, &c.

His Honour said the Plaintiff must be non-suited with costs,
as the proper parties had not been sued. He added (to Plaintiff) :
You must not sell imitation for real morocco. The Association
makes a profit of 123. out of every book. The Defendant has
a right of action against the Association for the ios. he has
already paid.

How justice was given to book-hawkers, and to
mechanics and servant girls who have unwarily
become their victims as customers for serial issues
(generally inferior) of works of which they only have

212

Discourages Book Canvassers

seen a specimen, may be gathered from the following
newspaper articles.

From the Queen newspaper is extracted the
following : —

The account of a City instructive case, which was brought before
Mr. Commissioner Kerr in the City of London Court in the preceding
week, was reported in the last number of the Queen. A well-known
firm of publishers of Shoe Lane sued a blacksmith for books which
he had ordered, and refused to accept.

The order was given for certain encyclopaedias. The specimen
copy on the merits of which the order was obtained was admitted to
be excellent, but the succeeding numbers were described by the
defendant as simply " beastly." He, however, paid for those he
received, but declined to take the remaining fourteen volumes.
Mr. Commissioner Kerr gave a verdict for the defendant, in terms
not complimentary to the morality of the system, but he refused to
allow the defendant his costs, on the ground that he should not sign
contracts of the kind which was produced by the plaintiffs. Of the
merits of the particular case we know nothing more than afforded by
the report, and that speaks for itself. A second case will be found
in our present number taken from the Times of Monday. A
" Suburban Vicar " writes to expose the practice of certain firms
employing book-hawkers to inveigle young girls into signing contracts
to purchase Bibles, &c., under similar conditions. The writer cites
a case in which a child of sixteen had entered into a contract and,
in the course of two years, had paid £i 193. to one of these can-
vassers for a large Bible. On leaving her situation she was served
with a County Court summons to pay i6s. more to the "firm,"
doubtless relying on the defendant's ignorance of the law that pay-
ment for goods not necessaries of life, ordered by a minor, cannot be
recovered, and trusting that the summons would frighten her into
payment.

Another newspaper's comments upon the book-
hawkers were as under :—

Mr. Malcolm Kerr has come back to the City of London Court,
and is there again giving his decisions. Mr. Kerr has always desired

213

Commissioner Kerr

to be what lawyers call a " strong Judge." Lawyers mean by this a
Judge who is not bound by too many coils of the red tape of pre-
cedent in giving his decisions. Mr. Kerr's latest judicial pronounce-
ment has some interest. There is a usage, when some voluminous
work is being projected as a serial, to send round a traveller with
a sample early number, who gets what subscribers he can. The
usage is quite legitimate, but it may cover an illegality. The case
which Mr. Kerr decided in a very offhand way came under this last
condition. The bulk did not answer the sample, the later issue was
not equal to the first number, from which the order was made.
Mr. Kerr decided for the defendant, and the bookseller was left to
his action for breach of contract. The importance of the decision
lies in this — that, at a time when the press is literally flooding the
country with serials, it must almost necessarily happen that publishers,
keen for orders, may make promises greater than they can fulfil.
The promise is not verbal. The first number is the promise ; and,
if the quality of the first number is not substantially preserved, then
the subscriber can't be called upon to complete. He has paid for
what he had, and he need not have the other, and need not pay for
them.

The way in which the Commissioner dealt with
claims upon poor seamstresses for sewing machines
sold to them at exorbitant prices may be gathered
from a newspaper extract taken from the Observer
of December 13, 1885 : —

Mr. Commissioner Kerr is often eccentric, or apparently so.
But, beneath his eccentricity, runs a strong undercurrent of common
sense and genuine kindliness. He had on Friday last before him a
number of summonses against poor needlewomen, who had been
trying to possess themselves of sewing machines under the so-called
purchase-hire system, and who had fallen into arrears. The learned
Commissioner, more suo, denounced the system as extortionate, and
told the debtors that he should only order them to pay what they
could afford. Under the hire-purchase system, a poor woman gets
possessed of a machine at about twice the price she would have to
pay for it in cash. The vendor is protected by a well-known legal

214

Dislike of Hire-Purchase System

decision, to the effect that goods on hire-purchase are liable to
distraint for rent, but not to fieri facias , or execution for debt. The
seller consequently has only to look after the rent receipts, which, in
the case of a seamstress, are weekly, of course. When the price of
the machine is nearly paid, there is pretty sure to be an arrear in an
instalment, and then the machine is at once carried away, and the
back instalments declared to be forfeited. The purchase-hire
system is always the same in principle, and it is perhaps as well that
its exact nature should be more generally known, and that young
women anxious to avail themselves of its advantages, should be able
to judge also of the disadvantages with which it bristles.

The book-hawkers appear to have suffered in silence
— probably publishers of the class by which they are
supplied with their wares have no trade journal.
But there is or was a Sewing Machine News. This
is an American periodical, and it heartily denounced
the Commissioner in its issue for February, 1886.
In its " London Letter" its correspondent denounced
him as one who " should be held in execration and
contempt by all classes representing the sewing-
machine trade," and the correspondent added, " I shall
be glad if you will print his name in capital letters :
MR. COMMISSIONER KERR." Then followed
about half a column of violent and virulent abuse, but
not a suggestion that the course which the Commis-
sioner had adopted was not perfectly legal. He had
treated the American sewing-machine Shylocks in the
same way as he long had the English money-lending
Shylocks — by giving them indeed their "pound of
flesh," but ordering it to be paid by very small instal-
ments, and advising the poor defendant, in cases
where it was worth their while so to do, as to the
manner in which the debt could be altogether got rid

215

Commissioner Kerr

of by a recourse to the protection afforded by an
" Administration Order," or by the Bankruptcy Court.

About various matters in our legal system the City
Cadi had views as pronounced as those which he held
about certain classes of individuals who habitually
came before him.

The Commissioner, wherever it was possible to do
so, decided against those whose acts were likely to
be prejudicial to the health of the community. Thus,
before such views of the law had become as frequent
as they since have, he, in May, 1883, decided that
" property has its duties as well as its rights," as he
then said, to quote from the Birmingham Daily
Post. In a case of Cook v. Elwen the landlord had
sued for his rent, and the defendant, a widow who
was tenant, and let lodgings, had made a counter-claim
against him for breach of a contract to put the drains
in order on being paid ^4 a year extra, and having
neglected to do it, so that the house became unin-
habitable. Defendant made a counter-claim for the
rent for the period during which the house was
uninhabitable, and for damages because lodgers had
left and illness had ensued. The Commissioner gave
judgment for the defendant on the claim and also
on the counter-claim, with substantial damages, and
allowed costs on the higher scale, on the ground that
the point was of general public interest. In March,
1888, a somewhat similar case occurred. Two
maiden ladies, who had taken a house at Bayswater
to use as a boarding house, obtained damages from
their landlord for not putting the drains of it in
order as he had undertaken to do. This case also

216

Protects Health of Community

attracted great attention, and was the subject of an
article in The Standard. Again, where a fish-
salesman of Billingsgate sued for the price of a
" trunk " (or box) of fish sold by him to defendant,
with a few good ones on the top, covering a lot
of rotten ones which were unwholesome and not
fit for human food,1 the Commissioner denounced
the practices of Billingsgate in a way which after-
wards exposed him to much of the characteristic
language of that locality, and gave judgment for
the defendant on the ground of fraud. This ''got
over " his own previous holding (clearly not now law,
as Act of Parliament is to the contrary) that there is
no implied warranty on a sale of provisions intended
to be sold by retail for human food.

Company swindlers received no sympathy from the
Commissioner. One day when he had a case of
this description before him he remarked, " I believe
that if some one started a railway to the moon people
would take shares in it." To a lady who had lost
a considerable sum of money in the company he
said, " Take my advice, madam, and for the future
never hold shares in anything but the Bank of
England."

Certain classes of defences also received little
encouragement from Commissioner Kerr. A defence
common in County Courts is for a defendant, after he
has had the benefit of the services of the plaintiff, to
turn round and say that he thought he would not
charge for them, but would give them "as a friend."

1 As to his mode of regarding such cases in a Criminal Court,
p. 252.

217

Commissioner Kerr

The Commissioner's general views on this sort of
defence may be gathered from the following incident.
One day a young surgeon, who had been in practice
only a few months, was suing to recover some three or
four guineas. The defendant told the Commissioner
that it was only a trifling matter the plaintiff had
attended him for, but his real answer was that he
and the plaintiff were friends and neighbours, and
he never expected plaintiff would make any charge.
The Commissioner : " Ah ! that is so, without a
doubt." Then to plaintiff: " If you take my advice
you'll try to work up a practice amongst your
enemies — your friends will never pay you."

Little, however, as he might sympathise with them,
or much as he might dislike them, persons who had the
strict law on their side always, however, found them-
selves given all that they were by the letter of the law
entitled to. Thus, moneylenders and vendors of things
sold at extravagant prices which were to be paid for
by instalments, always received a judgment for their
legal dues. But the manner in which such a judg-
ment should be enforced was left by the law entirely
to the discretion of the Commissioner. He exercised
it by directing the instalments to be as light as the
debtor's circumstances warranted.

Long experience enabled the Commissioner to hit
off a happy description of a whole class in a few sar-
castic words. Thus the old maxim, Caveat emptor,
was one about which he never tired of explaining and
applying, whenever he thought that a suitor might
well have been a little " sharper " in watching his own
interests. Once the question of Caveat emptor cropped

218

" Caveat emptor ?! —Types of Witness

up in a case in which the defendant was appearing
in person. The latter evidently failed to understand
it, and the Commissioner said to him, " Caveat emptor
means that the seller may cheat, but the buyer
mustn't." Said he, too, once, when a suitor was
lamenting how he had been " done " by a villainous-
looking Whitechapel Jew of typical aspect, dark
complexion, a very pronounced nose, and a pair of
shining, cunning black eyes. " Can't you see that
Caveat emptor" (literally, " Let the purchaser beware")
is writ big all over his face ? "

Amongst the Commissioner's descriptions in a few
words of witnesses of a class with whom he was
familiar, the following are noteworthy. Once when
a pawnbroker had given evidence, the Commissioner
was evidently not impressed by his regretting he could
not call his assistant to corroborate him. Said he, "I
know — a dirty shirt and diamond studs. We can do
without him. Go on with your case."

Neither was the idle creature who often poses
as " The British workman " any favourite of his.
With all his kindly sympathy for industrious artizans,
especially if really poor and distressed, he had an
intense hatred of the man who " trades " on his
being in humble circumstances, and who, as is
often done by a certain class of suitors, puts
forward as an excuse for exorbitant and extortionate
charges, or for not paying his debts, the excuse
that he is " only a poor working man." He
remarked, on one occasion, when a " working man "
had claimed a bill with many exorbitant charges in it
which the defendant objected to pay, one of which

219

Commissioner Kerr

was for sweeping snow from the top of a house, "Once
get a workman on your roof, and it requires an Act of
Parliament to get him down again." On another he
declared roundly, though he really was speaking with
a view to the particular case before him, " Don't talk
to me about the working man : I have a very strong
opinion about him. I think that he is one of the
greatest impostors of the day ! "

The last remark brought him the following curious
anonymous letter : —

December 7, 1880.
HONORABLE COMMISSIONER KERR.

SIR, — Many fools will blame you for your sensible remark of
yesterday, about the "working man," but all sensible men must agree
with you. Our Kerr is a " cur " to vagabonds, but the right man in
the right place, we are proud of him. We are all working men, so
are you. I was twenty years in one of our largest City firms before
I got .£200 a year, and I have been actually in harness forty-three
years.

Coach painter can earn ... ... ... ^5 weekly

Women, perambulator work ... ... ^£5 „

Saddlery, general ... £$ „

Felt hat make ^£7 „

&c., &c., and yet the scoundrels never pay income-tax, as I have
done for years. They are like livery servants, &c., lazy and care-
less. They never pay income-tax, and with wages and gifts they
many of them make £4 and £5 weekly. These I know as fools
from thirty years' actual experience of these claims. Bah ! I hate
the word " working man " ; in England it is done to death. They
are the greatest tyrants English masters have in every trouble — nay,
idleness, drink, holidays, insolence, strikes, extravagance, &c.
I am, sir, with apologies,

Your obedient servant,

Civis ET PATER FAMILIAS.

220

Distrusts " Working Men " Impostors

Being without address, the following is also
practically anonymous : —

"THE WORKING MAN."

DEAR SIR, — I don't know you, or even the Court you preside
over, but I hope my congratulations may reach you on your descrip-
tion of the so-called working man. There are thousands who think
as you do, but dare not speak out for political motives, and I am
delighted to find one in authority boldly declaims the honest truth.
It is high time. As for myself, I have no direct connection with
the " working man," but as an observer I can see he is an arrant
humbug.

I remain, dear sir,

Yours truly,

JOHN ROBINSON.

To those who knew the Commissioner, and his
genuine sympathy for the real working man, these
letters, and the previous sayings of the Commis-
sioner, need no explanation. The so-called " working
man " who sues to recover some exorbitant sum in
payment for a job with which he has chanced to one
day be entrusted — such as sweeping the snow off the
roof or from the gutter — but whose nearest approach
to a day's work has been either when he, in the country,
has tramped to the casual ward of an out-of-the-way
country workhouse, or has, when in town, marched
for a few hours with " the unemployed" — is the kind
of spurious " working man " who was the object of
the Commissioner's scathing remarks. Every class
in life has its black sheep, and from these even the
artisan class is not free. Amongst them are to be
found, from time to time, individuals who seldom
work much, and are decent workmen enough when
sober ; but who, after the unwonted exertion of per-

221

Commissioner Kerr

forming" a bit of work, drink and loaf on its proceeds
for many days.

Sometimes a case resolved itself into a mere
question of " oath against oath." Under such cir-
cumstances the Commissioner would strongly advise
the parties to have a jury. He has, indeed, been
charged to have sometimes erred by pressing this
advice so strongly that it became irresistible. No
doubt the proper course is for the Judge to himself
decide a matter if the parties so insist. In such
cases a lawyer will generally find for the defendant, on
the ground pointed out below, viz., that plaintiff has
failed to discharge the burthen of clearly proving his
case. The Commissioner's general practice was to
let this rule of law be well known, if not to actually
mention it, and then allow the plaintiff to summon a
jury if he so wished. His action in cases of oath
against oath has been much canvassed, and the High
Court has even lectured him on its being his duty to
decide if asked to do so. But the practice he followed
was usually satisfactory to the suitors in his Court.
Some mercantile man, writing in Kemp's Gazette on
December n, 1889, and signing himself "A City
Merchant," said : —

In contrast with the general County Court practice let us, for
an illustration, take the City of London Court. That able and
learned judge, Mr. Commissioner Kerr, desirous of guarding him-
self against an unjust decision in cases where there is a great conflict
of direct testimony, invariably1 adjourns it to be tried before a jury,
with the result that, after the hearing of the case, both parties enter-
tain the highest respect for the Judge, feeling that they have had a
fair opportunity of placing their evidence before the Court.

1 This was not quite accurate. See above,
222

Practice when " Oath against Oath '

The manner in which the parties to a County Court
suit often flatly contradict each other was the subject
of many a sarcasm by the Commissioner. Parodying
the comment of the old Scotch minister, who, in
expounding the text, " I said in my haste all men are
liars," and remarked, " Indeed, David, if you'd lived in
this parish you could have said it at your leisure,"
the Commissioner often said that David could have
"said it at his leisure," certainly "if he had sat here
for forty years." He was also very emphatic as to the
need of putting every bargain into writing. Said he :
" Always put everything into writing. Pens are cheap,
ink is cheap, and paper is cheap." His opinion was
that " people contradicted each other so much that by
and by when you go to buy a penny loaf you will have
to take a written order for it to prevent contra-
diction."

While fond of remitting cases where there was
" oath against oath " to a jury, he, however, always
impressed upon the parties that he had no idea what-
ever how that body would decide the case, and that
he could not even guess what their decision was
likely to be. A favourite saying of his ever was that
"If you have a good case you're safe with the Judge ;
if you have a bad one you have a chance with a
jury."

There never was, indeed, any great sympathy
between him and the juries before him. Sometimes,
perhaps, the jury were struck with the manifest
common sense and justice of the view he took. But
at other times he was too quick for his jury, seeing
a point long before it became evident to them. And

223

Commissioner Kerr

he never — at any rate, very seldom — could bring his
mind down to explain what to him was obvious.

At the end of a case the Commissioner usually
gave the parties and Counsel an example of his pre-
cept, by delivering his " summing up" in the fewest
possible words. He would say, " Gentlemen, you
have heard the evidence. Which do you believe,
plaintiff or defendant ? Find accordingly." Some-
times he would say, "If you believe the plaintiff, find
in his favour ; if you believe the defendant, find for
him. If you believe neither, then Providence alone
knows what your finding will be."

It is told of a late Lord Justice, whose law was
certainly better than his sense of humour, that he
looked puzzled and thoughtful on being told of this
form of summing-up, and then very seriously said,
" But such a summing-up was surely a misdirection.
He ought surely to have told the jury that if they
did not know which side to believe the plaintiff had
not discharged the burthen which he had taken on
himself of making out his case, and so the law required
them to find a verdict for the defendant." Undoubtedly
many judges would have so directed the jury, and
be it added, in pious justice to the memory of the late
very learned Lord Justice of Appeal, would have done
so quite correctly. It was not, however, the custom of
the Commissioner to talk to his juries in quite this
style. So great was his love for brevity that he
once delivered the shortest summing-up that ever
was known. After a long wrangle between the rival
advocates in a " running down " case the Commis-
sioner's summing-up, expressing his view of the

224

Judgments — Views on Costs

whole matter, was comprised in the two words,
"How much?"

The " Judgment" delivered by the Commissioner,
in cases where there was no jury, was usually as terse
as his summing up to a jury. An idea of his style
may be gathered from his judgment in what proved
to be the last " Admiralty " case ever tried by him.
The barges which a tug has in tow are on the river
called technically her " tail." Addressing the counsel
against whom he decided, who was a great favourite
of his, the Commissioner gave judgment in these few

words : " No, Mr. ; it won't do. You haven't a

leg to stand on, and you're tail was much too long."

Questions of "costs" in legal proceedings, which
usually form the subjects of application at the end of
a case, had a great interest for the Commissioner.
He entertained a strong opinion that both costs and
Court fees also are far too high in English Courts of
Justice. He was wont to say so plainly, at the same
time pointing out how much lower they were in Scot-
land. Probably every one who has had the misfor-
tune to be engaged in a lawsuit, will accept the
Commissioner's views as to costs in English County
Courts, even without Scotch experiences. The
Court fees in the County Courts are, indeed, in
England much higher in "the poor man's Court"
than fees in exactly similar proceedings are in
Scotland. Their reduction by about 50 per cent.,
which the Commissioner desired, would certainly
be a mere act of justice to the poor. Probably
the nation is not yet prepared to, as has been sug-
gested it ought to do, provide free justice just as it

225 Q

Commissioner Kerr

provides free education.1 Our forefathers long ago
doubtless also thought Justice ought to be free
when they framed the famous clause in Magna Charta
that it should be sold to none, a promise which is
violated whenever fees are levied by our Courts.
Some remarks once made by the Commissioner on
this subject were copied by the Practical Socialist
newspaper with great glee. He appears to have
said : —

A great effort has been made during the elections to induce the
new Parliament to establish free education, but the free administra-
tion of justice1 would be far more important. It was attempted
during the French Revolution, and I don't think it would be quite
so revolutionary a measure in this country as the other project. I
know how greatly people complain of the legal fees, which are very
objectionable.

The above remarks attracted attention beyond
England. The German Leipzig Gazette in particu-
lar noticed them with approval, saying : —

The enormous law costs in England are a perpetual source of
bitter complaint, and many people had rather suffer injustice than
go to law, as they are quite ruined by them. Judge Kerr, of the
Court of Justice of the City of London, remarked a few days ago
in relation to this, " People talk much of free education, and that is
doubtless an important subject, but still more important is the free
administration of justice. This was tried in France at the time of
the Revolution, but fell through. In England, too, it is looked
upon as a revolutionary measure, and yet it is less so than bringing
in free education, and quite as important, and not less helpful."

1 For the Commissioner's views on this subject and the kindred
one of Courts of Conciliation, see further, Chap. X., post, at p. 287.

226

Views about Lawyers' Costs

Against the heavy costs charged by solicitors he
was, too, never tired of exclaiming loudly. Said he
often —

I cannot help costs accumulating. Lawyers must live, you
know. If you were to establish the doctrine that lawyers were
only to get a commission on what they recover there would be no
adjournments, no refreshers — no anything. People would be made
honest then. It would be a sad thing for the lawyers, but that
would not matter.

Sometimes he remarked, " Never go to law
under any circumstances. You had much better
lose your money than go to law. As a rule, it
only puts money into the pockets of the lawyers —
the very worst form in which it can be spent."

His remarks of this nature as to costs, were a
subject on which, in early days of the authorship
of the Common Law Procedure A els, he will be
recollected to have expressed himself strongly. His
views on this matter, of course, did not endear him
to the legal profession. Some of the advanced
newspapers, however, greatly applauded them. Thus
Lloyd's Weekly for March 6, 1886, said this : —

Mr. Commissioner Kerr is doing a real public service by his con-
stant, outspoken comments on the more glaring anomalies of the
law and the legal facilities given to lawyers to overcharge their
clients. In a case which came before him yesterday in the City of
London Court the matter in dispute was ^60, but the costs already
incurred in the action amounted to ^38. The Commissioner very
rightly observed that it was equally discreditable to the legislature
and to the legal profession that such a system could be allowed.
Some exception was taken to this sweeping statement by the
solicitor for the plaintiff, who urged that as the defendant had
entered an appearance to the action his client had no alternative

22;

Commissioner Kerr

but to proceed. This view, however, was immediately controverted
by the Commissioner, who argued that the defendant had probably
consulted a solicitor who had not the honesty to tell him there was
no defence. Mr. Kerr went still further in his candour and ventured
on the opinion that solicitors as a rule cared for nothing except to
run up bills of costs. It is to be feared that this general impeach-
ment of the profession contains a good deal of unpalatable truth,
but so long as the state of the law allows solicitors to pile up costs
entirely out of proportion to the matter in dispute they can hardly
be blamed for taking advantage of their privilege. What is required
is a change in the laws and a change of the lawyers, and we would
suggest that Mr. Kerr should collaborate with the Lord Chancellor
in drawing up a bill to regulate the scale of maximum fees in
accordance with common sense as well as with common law.

Sometimes, when an appropriate opportunity offered,
the Commissioner would refuse a successful party his
costs with the remark : " This Court does not exist,
you ought to know, for the sake of putting money
into the pockets of the lawyers, like the High Court."

On the other hand, he had no sympathy with
persons who, although well able to do so, did not pay
their just debts but sheltered themselves under the
protection of the Bankruptcy Court, or of a bill of
sale given over their furniture to a wife, relative, or
close friend. In all such cases he would always give
due effect to the protection which the law afforded, but
would remark with caustic severity, where the debtor
proved that he was only the servant of his wife
although he appeared to be the owner of premises,
that the debtor's position was not a "dignified" one.
In an interpleader case the Commissioner was once
heard to define a bill of Sale to be a document
given to secure one creditor and cheat the others.
He used sarcastically to say that "persons without

228

Views upon Bankruptcy

means," such as those above described, are always well-
dressed, and he would sometimes add, " and always go
about in cabs," remarking, " I can't afford either."
If protection was claimed by reason of the Bank-
ruptcy Law the Commissioner, while of course giving
effect to the Law as it stands, often declared
that he did not believe in any Bankruptcy Law,
and, for himself, disputed the moral right, even of
the legislature, to cancel a man's just debts and give
him a fresh start. And he would add sometimes :
" If you complain of the Bankruptcy Laws you should
complain to the Bankruptcy Court, and tell them that
their proceedings are a farce. I cannot alter them.
I should know what to do if I had the chance. I
would not give the rights of citizenship to those who
do not pay their debts. I would not allow them to
become Judges, Members of Parliament, or Common
Councilmen." So far from sympathising with dis-
honest debtors who avoided payment, he frequently
said plainly that, in his opinion, " A man who does not
pay his debts ought to be made a social outcast," and
declared that, if he had his way, he would oblige all
those who had been bankrupt to wear a parti-coloured
or other indicative dress. The idea that debtors who,
under the guise of legal protection, left their debts
unpaid, should be so distinguished, is not, as has been
sometimes ignorantly assumed, a mere " fad " of the
Commissioner's. It was at one time the law that
soldiers could not be arrested (then the great remedy).
A case is to be found in the legal Reports of an
action where the plaintiff was a man of whom
another had said, " I saw thee in thy red dress."

229

Commissioner Kerr

Probably this case furnished his idea to the Com-
missioner.

When it was mentioned to him that a defendant

li.ul promised lo pay ;i debl he would make one of the
following rein. irks : " I lave you nol lived Ion;; enou-di
lo know that promises ;nr m;ide lo !><• broken ' ll .1
man breaks a. promise never believe him aijain." Or:
"The m;m who promises lo pay his debts never docs
it. The man who docs it pays instead of promising."
From die slri< tness with which he always required
piooi ol me.iir, lo he iMven before he would m;i!

commitment order it came to be accepted almost as a
maxim in the City that "it is impossible to get a
< ommiunent order out of the Commissioner." Never

w;is then- ;i i;realer mistake. In .1 case where the

Commissioner was satisfied of the debtor's ability to

pay, nolhiii' • > < linn -i ealei pleasure ihan to
enforce payment.

A story he never tired of telling was that he once
made a commitment order against a debtor who
was proved to have lately entertained his friends
at a champagne lunch, that the Bailiff of the Court
actually arrested him while presiding at another,
but that some Judges forming a Divisional Court
nevertheless released him because there appeared
to them to be no sufficient proof of means. The

hotel keeper miidit have supplied these lunches on

credit, and no proof that actual payment for them

had ever been made had been idveii ! The case is

reported in the Times of June 11, 1898.

In view of The Commissioner's opinions as to the
in. 1 11 tier in which County Court Judges ought to make

230

Virws on Commitment for I )rl>(

II-.'- oi the powei oi imprisonment, one of the most

powerlul engines .il their < .>inin.iii(l to in a lit case

( ompel tile |».l\ nielli « >l .1 jll'il <l« I •!. \\ ln« II \\ < i < • ••• I « >:il

in an early « hapter, ami <>| tho-.r \\ln< h IK entertained
.ilxMil il.HiH ,ii< credit, the l< >ll< >\\ iti' • remarks i««<-nil\

made by the Lambeth County Court Judge (Judge

Kmden) will he read with interest. They .ire taken

from the Times of February 6, 1 903 :—

Imprisonment lot <l<-|>| in ( 'oimly < 'oiuls lias U-rit ili< ir.r.on ;il
(he bottom (>l (lie Divine, ol unreasonable ciedil, \vln< h r. .nr.uci

able for endless misery among the poor, It would never have been

i;ivi ii \\itlioui ilir. powei I-. Imlil ovei Hi' M In ads This nun ;r - HI
able < ledll r. mainly j'.iv n lo llu lo\\n \\iiikinj', < l.r.-,< ••. ;IIH| .i|',n« ill

lin.il l.il.uiiK r, .,1 III.- pool .in. I i" .ml . l.i . ,, IK >|ti< nll\ lliiollf.ll

their vviN'cs. // the niitti/'it <>/ t/it/t/><'/i t<> /*<• \///'/',' /,',,/ .', ,,//, /./,', r
n*n\iiifftd in tdfn fctstt the gfctit ///

/( ,c i:nc < :is<", icniiiin lo \vliu Ii diil\' tin- ,\< I \v.r. inl« 110*1 d to .ipply

The argument as to helping these classes when in distress does not
apply to the (|ucsiion oi iiiiir;r.on;il»lc credit. Moreover, it is better
not to attempt to alleviate distress when the end is to apply <<>

commit lopiison. As illustrating in lunl I.M i . HK-.C st;ilc'mcnls, I
take M.'iidstone as a country district. \\lnn I IIP. I \\ini llicic nine

( 1 1 ten ' 1 1 1 < i ' ' \\ ' i < ' n i . n I \ i , n < i ' i , 1 1 1 1 1 1 1 < . 1 1 1 1 1 1 1 • . 1 1 1 1 1 1 1 1 1 < M ' > 1 1

in' ill pi i .niniiiii .IIK| <> ; i mi ii is< Minidil s. Now, not wil nslandinur
( v ' i \ in< 1 1 MM in I In ordinary business, 1 1 1> i < . n • • \< • .ipplu al ions
.iinl i'i impi IM n i UK ni . Al I .1 ml » 1 1 1, as in mslann <>l London,
1 1 H 1 1 \\ i 1 1 ncai ly i ,000 ,'ipphcal ions l< >i mi| n isoiimcnl an< I < >< >
i m pi i. son i u< 'ills Mi i\\ 1 1 M 1 1 ;n i i;y< i appli< at ions and | unpi IM u i

( i HIV UK i < I lli.il llu Ail is .1 • < H .< | Ail H pnipiil\ a« lniiiusl< n • I
wionj'ly ailininisli ird, il causes liaid'.lnp .ind misciy

I I ic \\ i n 1 1' . < p i< >!<•( I . 1 1 M »\ < • .M< in exact accordance
wit 1 1 I IK 1 1 in-, i i ( < < ni decisions ol I h<- < < mi I < >l Appeal
on this vc.xcil ;ind little understood (jiiestioii ol nn
pi r. « •MIIK ni. lli.il < ouil h.c. l.ildy I. ud einph.i .1 .

231

Commissioner Kerr

on the need of it being proved against the debtor,
in every case where it is sought to imprison him,
that he has "means" to pay. The wise Commis-
sioner always gave great effect to the considera-
tions printed above in italics. It is becoming more
and more the fashion with County Court Judges
to do this. The writer, as a humble "deputy," has
long followed the teaching on the subject given him
by the Commissioner, and the result of his small
experience enables him to emphatically testify to the
truth alike of the principles put forward by the Com-
missioner and of Judge Emden's words.

The Commissioner's anxiety to oblige debtors to
pay their debts whenever he thought that they really
could do so is not only shown by the views about
such debtors expressed by him as mentioned above,
but by a further fact. The Commissioner, if he did
not actually invent the process, was the first amongst
County Court judges to discover that equitable execu-
tion by means of a Receivership would often produce
payment where nothing else would, and used when-
ever practicable to put this powerful means of com-
pelling payment into force. This he did because, in
his opinion, there is an injustice in the obstacles which
modern legislation throws in the way of the
creditor by making him first prove the debtor's
means instead of the debtor having to prove his
own inability to pay, and holding that as this was
the law, justice entitled the debtor to in all cases
have strict proof of means given against him.

The first aim of every Judge is to do justice, and
what may at first sight seem to be idiosyncrasies and

232

Described as Sitting in Court

eccentricities on the part of the Commissioner were in
truth systematic attempts to attain this great end.

A perfect Judge will never be found sitting upon a
human Bench. It certainly is not claimed for the Com-
missioner that he was one. His greatest failing on the
Bench, apart from the somewhat unfavourable impres-
sion which his rapidity sometimes produced, was that
he beyond doubt failed to always sufficiently " talk
down" to his juries and to give them that assistance
which a jury are entitled to expect from the Judge.
Without being actual fools — a class of persons of whom
the Commissioner was naturally most impatient — we
do not all pass our lives in Courts of Justice, or
necessarily possess such a familiarity with the law
as to be able, in a satisfactory way, to apply the
conclusion which is drawn from disputed facts without
instruction from a lawyer, save in but the most simple
cases.

A fair appreciation of the Commissioner as a Judge
was contained in the National Observer, for February
20, 1892 : —

MODERN MEN — MR. COMMISSIONER KERR.

Within a stone's throw of " Guildhall's narrow pass," the City
Fathers have " edified " a decent building, for the needs of the City
of London Court. The thing has already lost its novelty of aspect,
for smoke and fog at once imparted an air of antiquity (as to every
structure in Babylon), while the tread of human feet has marked, has
begun to wear, its corridors and stairs. The Court-house is apt
enough, but unless you like you are not apt to linger there any part
of a summer's day. Yet if it be your fancy or your fate to discover
how the smaller judicial business is done in the heart of London, a
sense of ludicrous incongruity shall take you when you consider the
manners and the methods of the presiding Judge. He sits well

233

Commissioner Kerr

within sound of Bow Bells, yet his ways and his accents savour of
the rugged North, not so much of the Parliament House as of the
streets and wynds that compass it about. Then, at the core of a
complex civilisation, he dispenses civil justice after the fashion of the
Cadi under the Palm, or (to go North again) in the manner of those
ancient lairds who used those days they could spare from vexing
the flocks and herds of the " fause Southron " in settling the dis-
agreements of their retainers. Last of all the method is a success.
Mr. Commissioner Kerr has held his position since 1859. He has
done his work well ; and that work is so peculiar that there would
be some difficulty in finding a thoroughly suitable successor. When
shall the same be said of the legal Dii Majores, from the Lord
Chancellor down to the newest puisne Judge?

The City of London Court is an institution with a long and
curious history. That, though, is a matter for the antiquary ; since
for all practical purposes the Court is now a County Court, which
species of tribunal has many qualities of interest. Before the lurid
horror, the deadly fascination of certain sorts of crime, you are apt
to forget how narrow of interest, how stereotyped in form, are most
of its varieties. In the High Court again the pace (for the rare
cause dtibre must not mislead us) is slow, and the matter mainly
technical ; but the lower Civil Court so focuses the life of a district
that in a few hours' space you shall learn there what are the beliefs,
customs, manners, occupations, character, of that district's inhabi-
tants. Here indeed is the raw material of many tragedies, romances,
comedies. In the High Court a day's sitting disposes of some five
to eight cases; in the busier County Court it is concerned with
some hundred. Unfortunately the English judicial system provides
not for the promotion of the minor Judges. They leave hope
behind that accept a seat on these inferior benches ; so that rising
men are forced to disdain a set of positions that in their own way
are desirable enough. Desirable — yes, but how hard to fill ! The
superior Judge has all the assistance that what is called " the best
legal talent " can lend him, while the methodical way in which his
cases are threshed out reduces the possibility of error to a minimum.
Below there is no time to spare, and the Judge is thrown upon his
own resources. His requirements are a complete and general
knowledge of the field of law, and not a perfect acquaintance with
one particular angle thereof ; a knack of seizing instantly the real
points at issue ; the ability to make an end with all convenient speed

234

Described as Sitting in Court

and to get through his list, neither slurring nor evading. Tis
perhaps an ideal portrait, but in some ways Mr. Commissioner Kerr
might sit for it. He keeps his work well in hand, though his daily
list is so large that it would put most Judges hopelessly into arrears ;
yet he so satisfies those whose duty, or their fate, it is to appear
before him, that some that yawn, or curse, or fume, or fret, in those
stuffy minor Courts, which are the shame of London, have been heard
to long for an hour of Mr. Commissioner Kerr. And were this all,
he might have passed through life successful and obscure ; yet his
name is known to thousands who never heard of his judicial
superiors. That is because his habit is to interlard the judicial
utterances with a running commentary on men and manners which
is always piquant and sometimes true. His apothegms are vastly
in request of them that edit evening and Sunday papers. Look at
the square corners of such sheets, and you are tolerably sure to find
a paragraph headed, " Mr. Commissioner Kerr on Servants " — or
Lords, or Trade, or Marriage, or anything. More than that, for-
getting a certain proverb as to an " ill bird " and its nest, he is
fond of gibing at his profession. Thus, a Barrister is brought before
him on a judgment summons, and he dismisses the case with the
reflection that " to be a junior member of the Bar is proof positive
of want of means," or he will cut short a long-winded pleader with a
grim, " None of your oratory ; come to your facts " (has not Lord
Bacon said that " to moderate length, repetition, or impertinence of
speech " is the Judge's duty ?) ; or he will grudgingly admit that
" lawyers are necessary evils," or that " even solicitors must live " ;
howbeit he is still fonder of animadverting on the all-too-natural
interest in costs of that much-abused tribe, while the imbecility of
legal methods is an ever-congenial theme. Such remarks are
impertinent in both senses of the term ; but they " fetch " the
vulgar. They are cynical, and cynicism has always a surface wisdom
of its own. More, they are put tersely and not unimpressively, so
that makes them stick in the vacant and half-educated mind ; and
they deal with subjects of interest to a vast body of people. Still,
the popularity of the Cadi, however honourable, is not everything :
and in one place the name of this particular Cadi is held in anything
but esteem. That place is the Common Law Bench of the Supreme
Court. When the decisions of minor tribunals are appealed from,
it is desirable to know the facts of the earlier stage ; and a brief
summary of the evidence and the points at issue taken by the inferior

235

Commissioner Kerr

judge is obviously the most satisfactory record. But the Com-
missioner errs by excess or by defect. He will sign a shorthand
record which is far too diffuse, or he will put in a set of notes that
are far too meagre and starved. The Divisional Courts are found
reflecting on him in most solemn terms, but to no purpose ; even
the " dread name " of Mandamus he treats with the scantest respect.
It may be want of time, it may be stubbornness, it may be " I know
better," it may be a blend of all three. But the fact and its incon-
veniences are there, while the remedy is yet to seek.

The peculiarities of the Commissioner's procedure
naturally afforded ready and ample food for the comic
papers. The following sketch of him and his Court
appeared in Punch of February 3, 1883 : —

ROUND ABOUT THE CITY COURTS.

Smart-looking lawyers and pigeons, on the whole the latter
stouter and sleeker than the former. Rather curious this, as,
when a pigeon gets into the hands of a certain kind of
solicitor, the poor bird gets effectually plucked. But these pigeons
are knowing little creatures, flying about the yard of the
Guildhall and under the immediate patronage of the Lord Mayor
and the Court of Aldermen. It is strange that the City Corporation
should have chosen pigeons for wards — it would have been more
appropriate had they selected doves — turtle-doves. However, there
are the pigeons, and they perch at the door of " the Commissioner's
Court." The pigeons are left behind, and this is the interior of the
hall of Justice, over which that good Scotch watch-dog, Com-
missioner Kerr, presides whenever it happens to be open. The
great man is seated on a stuffed chair (East of Temple Bar stuffing
is de rigueur) under the City Arms. On either side of him is a wains-
coting, semi-circular in form, suggesting that behind the boards is
plenty of accommodation for the brooms, brushes, and other
impedimenta of the old lady who does the charing. No doubt to
remind the Commissioner that he should keep cool, and not lose
his temper, there is an enormous barometer, which seems to have
been borrowed from a scene in the after part of a Christmas panto-
mime. The general impression, on entering the Court, is that

236

" Punch's " description of Court of

everybody is talking at one and the same time. And the im-
pression is not altogether erroneous. The plaintiff and the
defendant, in spite of their representatives being present, are hard
at work contradicting one another. Principals in other cases are
loudly discussing their chances of success, while two solicitors in
strange looking stuff gowns are loudly contending for vocal mastery.
A half-hearty effort to preserve order is made by placing a couple of
placards on the walls, requesting plaintiffs to keep on one side of the
room and the defendants on the other.

" Why are these solicitors wearing gowns ? " asks a newly called and
inexperienced Barrister, who has looked in possibly with a view to
obtaining some " soup," a nickname for chance briefs.

" Out of respect to the Commissioner, I think, sir," replies the
cheeriest of City Policemen — protecting a barrier. "His Honour
seems to like it."

The Commissioner appears to glory in the noise. He waits
until he catches something with which he disagrees, and then
pounces down upon the speaker like a cat upon a mouse. He
reminds one of an agile performer playing upon half a dozen kettle-
drums. Now he gives a tap to the defendant ; now to the plaintiffs
advocate ; now to the mild-looking gentleman in a Barrister's wig
who, seemingly, is the Court's Registrar ; now to four witnesses who
will speak together. Then he keeps quite silent until the two
advocates are once more fighting hammer and tongs, when, after a
few minutes' pause, he suddenly brings the case to a hurried con-
clusion by abruptly announcing his decision. The noise does not
cease. On the contrary, another pair of suitors are impatient to be
heard, and the chatter recommences with renewed energy. Again
the Commissioner deals out his knockdown blows right and left
with the strictest impartiality, until once again the time arrives for
him to stop the proceedings in the usual manner. The title of the
Court might be " Rough and Ready " in recognition of the hearty
simplicity with which it is conducted. It is only fair to add that in
spite of the noise and confusion the best feeling seems to prevail
everywhere, so much so that it is no unusual thing to see a Police
Janitor offering a pinch of snuff to a gown-glorified solicitor.

The following is a humorous sketch of the Com-
missioner's methods of trying a case without a jury.

237

Commissioner Kerr

It is, of course, considerably exaggerated, but yet
is, on the whole, a not unfair representation of a
type of case one meets with in County Courts. A
noisy, brazen, horsey Hebrew costermonger comes
up from the East End, tells a tale, marked by
extreme "bounce" and assumed carelessness and
recklessness as to money altogether incredible in its
details, but, on the strength of the subtratum of truth
entered in it, sues a demure, quiet-looking old sinner
of great apparent respectability, who is, nevertheless,
in truth a " pious fraud." Its general tone is not wholly
unlike the following extract from a newspaper : —

MR. COMMISSIONER COMIC KERR THAN EVER.
Scene: The City of London Court.

MR. COMMISSIONER : Now then, next case ! Where's the next
case? If that next case doesn't come up at once I'll commit
myself.

CLERK : Case of Rothschild versus Gladstone^ my lud.

MR. COMMISSIONER : What, Baron Rothschild and the Grand Old
Man?

CLERK : Yes, my lud.

MR. COMMISSIONER : Now then, Old Shylock, what's the matter
with you and Judas Iscariot Gladstone, eh ?

BARON ROTHSCHILD : I protest against your remarks.

MR. GLADSONE : And so do I. I am not Judas Iscariot.

MR. COMMISSIONER : I apologise to Judas Iscariot for pre-
suming that you were. De mortuis nil nisi bonum. What is it,
Baron ?

ROTHSCHILD : A little dispute — a trifle ! Mr. Gladstone and I
were tossing for fivers the other day, and I won twenty. He paid me,
and among them was one on the Bank of Engraving.

MR. COMMISSIONER : Oh, you want your pound of flesh, do you ?

ROTHSCHILD : No, I don't : I paid away the note in ignorance
to the Lord Mayor, who, on trying to pass it, got locked up. The

238

Parody of Case before

Lord Mayor lost his temper, and hit me on the nose. I went to
Mr. Gladstone and hit him on the nose, and he hit me on the hat
with his birthday axe, and now I want to recover the price of a
new hat.

MR. COMMISSIONER : That's it, a bloated millionaire comes and
takes up my time. If your ancestor had stopped in Germany with
all the other Germans

ROTHSCEIILD : What have my ancestors got to do with my hat ?

MR. COMMISSIONER : I don't know. The one in question may
be the original one your family came over in.

ROTHSCHILD : You are very insulting.

MR. COMMISSIONER : I'll commit you ! Now then, you radical
old humbug, what's your version of the story ?

GLADSTONE : When the Baron came to me I felt that there were
three courses open to me.

MR. COMMISSIONER : None of that here, Sir. You are not in the
beastly House of Commons. I consider that half the crime in this
country is the result of a House of Commons.

GLADSTONE : I won't argue with you. I admit I hit the Baron's
hat, but it damaged my birthday axe.

MR. COMMISSIONER : I dare say. A hat made by one of those
foreigners who are ruining English trade.

ROTHSCHILD : I bought it at Death's, in Oxford Street.

MR. COMMISSIONER : Then how dare you ? Why didn't you go
to the stores. I look upon the co-operative stores as the greatest
blessing, after myself, that the country possesses. I buy my liver
pills there at ninepence a box.

GLADSTONE : Have you tried taraxacum for the liver ?

MR. COMMISSIONER : How dare you prescribe for me, Sir. My
opinion of taraxacum is that it is about as useful as steam.
I consider the present depression in trade is entirely due to the
introduction of steam.

GLADSTONE : If you'll kindly decide this case, and keep your
opinions for your private amusement, I shall be obliged. I have a
Cabinet Council at two.

MR. COMMISSIONER (furious) : You insolent fellow ! How dare
you! Decide this case I will certainly; I fine you £10 with
twenty strokes of the birch and three years' police supervisipn, and
I order Rothschild to leave his old hat in Court. It will do for my
coachman.

239

Commissioner Kerr

The following extract cleverly caricatures the
Commissioner's method of sending a case of "oath
against oath " for trial by a jury. It is taken
from Gog and Magog (November 27, 1879) : —

THE CITY SOLON.

If you are neither plaintiff nor defendant there is amusement
to be derived from a visit to the City of London Court. To
use the vernacular of Basinghall, Mr. Commissioner Kerr is a
" caution." It is fashionable to ridicule this gentleman's decisions
and to laugh at his mannerisms ; but there is much sound common
sense about the president of the little Court in the precincts of
Guildhall, where small creditors and debtors fight their battles. He
gets through a tremendous amount of work. He stands no
nonsense. He shows no compassion to creditors. "You should
not give credit," says he. He thinks ready cash should be the
basis of all small transactions, and he is right.

The words of the Commissioner as a rule are few, but they are to
the purpose. The following is a specimen of his style.

[The case Jones v. Snooks is called. The plaintiff enters the box
and is sworn.]

Judge : What is your name ?

Plaintiff: John Jones, Your Honour.

Judge : What are you ?

Plaintiff : A private bank clerk of nine years' standing.

Judge : What is your case ?

Plaintiff: I entrusted defendant with some collars and cuffs to
wash, and he lost one pair, value eighteen pence, and I sue for that
amount.

Judge (to defendant in box on other side) : What have you to
say?

Defendant : I returned all the things to the plaintiff.

Judge : On your oath ?

Defendant : No, on Wednesday week.

Judge (severely) : Keep to the point, sir. (To plaintiff.) Do you
hear what this man says ?

Plaintiff : Yes, Your Honour.

Judge : One swears one way and one the other.

240

Imaginary Trial before

Plaintiff: What do you advise?

Judge : I ! ! I advise nothing, but you can have a jury to try
the case.

Plaintiff : But how is it likely to be settled ?

Judge : Well, I hardly know. If all the jurymen happen to be
private bank clerks of nine years' standing most likely they will
find for you, but if they happen to be collar-dressers they will find
for the defendant.

Plaintiff: I think I will withdraw my claim.

Judge : Oh, very well ; next case.

241

CHAPTER VII.

THE COMMISSIONER AT THE OLD BAILEY ADMINISTERS
STERN JUSTICE TEMPERED WITH APT MERCY-
TRAVESTIES OF HIS WAYS AT THE OLD BAILEY.

characteristics and methods of a Judge
presiding in a Criminal Court will be in most
respects identical with those possessed by the same
Judge when presiding in a Civil Court. The main
features which distinguished the Commissioner when
sitting as Judge in a Civil Court, have been fully
described in the preceding chapter, and this makes
it unnecessary to present any lengthy description of
him when presiding in a Criminal Court. The
writer is, moreover, the less able to present such a
picture, because he never practised regularly at the
Old Bailey when a junior, and since he " took silk "
in 1885 has never gone there at all.

The Commissioner, it has been explained,1 sat at
the Old Bailey as a Judge by virtue of his office as
"Judge of the Sheriffs Court," and derived the
title of " Commissioner " from the fact that he did
so. Just as Assizes are held in every county a
certain number of times in every year, under com-

* See Chap. V., ante, p. 115.
242

As " The Commissioner "

missions issued by the Crown, as the fountain of
justice, directed to certain persons who are usually,
but not necessarily, Judges of the High Court,
commanding them to act as Judges on these occa-
sions and in those counties, so an Act of Parlia-
ment, known as the Old Bailey Act, 1852, directs
a commission to be issued to certain persons com-
manding them to sit at the Old Bailey " Sessions "
at certain times in each year (once a month) 4
and there exercise as Judges the statutory jurisdic-
tion which the same Act confers on these " Sessions."
Amongst the persons I to whom the Act requires that
this commission from the Sovereign shall be addressed,
besides the Lord Mayor, the Justices of the High
Court, and the Aldermen, are "the Judges of the
Sheriff's Court." Under such a commission "Com-
missioner Kerr " sat at the Old Bailey once a month
for some thirty years, viz., from about 1859 till early in
the nineties ! He united in his own person both the
"Judges of the Sheriffs Court," having been elected
to each of the Judgeships. As the Sheriffs Court
had no criminal jurisdiction, he, when sitting at the
Old Bailey, was properly styled " Commissioner,"
though he was in truth only one of the several
Commissioners empowered to sit there. But having
no colleague in exactly the same position, he grew to
be called " The " Commissioner.

As has been seen in a previous chapter, the newly
elected Judge of the Sheriffs Court took his seat at
the Old Bailey as a Commissioner there on May 13,

1 Mentioned anfe, ubi sup. p. 115.
243

Commissioner Kerr

1859 ; and on that occasion received the congratula-
tions and good wishes of the Bar of the Court.

The best-known criminal trial that ever took place
before Commissioner Kerr as one of the Commissioners
of the Old Bailey was that of the once notorious
Madame Rachel. This is technically known to
lawyers as the case of Reg. v. Leverson — Leverson
being Madame Rachel's real name. The trial took
place on September 22, 23, 24 and 25, 1868. The
offender had .been tried at the Sessions at the Old
Bailey, held in the previous month of August, 1868,
before Mr. Russell Gurney, Q.C., the then Recorder.
On this occasion the jury had failed to agree, and had
accordingly been discharged without a verdict, and the
prisoner put a second time upon her trial before
Mr. Commissioner Kerr on the dates named. A full
report of this trial was from day to day contained
in the Times newspaper. The case excited so much
interest that these daily reports were soon afterwards
reprinted and published by a firm of Diprose and
Bateman, who at that time carried on business in
Portugal Street, in a pamphlet which was sold at the
price of one shilling, a copy of which is still to be
found in the Library of Lincoln's Inn. From this it
appears that Madame Rachel was a person who sup-
plied those ladies who were foolish enough to buy them
with cosmetics bearing the most extraordinary names,
and who advertised that she was able to render her
patronesses ''beautiful for ever." The story for the
prosecution was that the defendant had pretended to a
certain Mrs. Borradaile that a noted nobleman then
much about Town had fallen violently in love with

244

Trial of Madame Rachel

her, and intended to marry her if she submitted to the
defendant's treatment, and was made beautiful for
ever ; that she had by this pretence induced Mrs.
Borradaile to sell out her fortune to pay for the treat-
ment, and for various of the strange cosmetics just
mentioned ; that in pursuance of this fraud various
love-letters, which were pretended to come from Lord
Ranelagh, had been shown to Mrs. Borradaile,
the prisoner accounting for the bad spelling of
these by saying that his lordship, having lately hurt
his arm, had been compelled to employ an amanuensis.
The prosecution further charged that Madame Rachel
had also obtained a specific sum of ^400 under the
pretence that it required to be spent in preparation for
the marriage alleged to be about to take place, as well
as certain plate and jewellery which were Mrs. Borra-
daile's property. The total amount of the property
thus obtained was alleged to have been of the value
of no less than ^5,300. The list of cosmetics sold
by the defendant was proved to include " Royal
Nursery" soap, at two guineas a box; and also "Royal
Palace " soap, " Royal Prince's " soap, " Royal
Alexandra" soap, and "Prince of Wales " soap, all at
the same price per box; likewise "Honey of Mount
Hymethus" soap, and "Peach Blossom" soap on
similar terms; with, by way of variation, ''bottles of
Jordan water," for the modest sum of ten or twenty
guineas a bottle.

Such was the case for the prosecution. That
for the defence was that Mrs. Borradaile had been
indulging in a mere vulgar intrigue with a man
of low class who was hinted to be a common

245

Commissioner Kerr

soldier ; that the name of Lord Ranelagh was
a mere "blind" arranged between the prisoner and
the prosecutrix in order to deceive the family of the
latter; and that the lady's knowledge of this was
pretty conclusively shown by the fact that among
the articles known by her to have been purchased
for her lover were shirts, socks, and other articles
of common wearing apparel of which she could
not possibly have supposed a person in Lord Rane-
lagh's station to stand in need. At the first trial
no witnesses had been called in support of this
ingenious theory, at the second the eloquent Counsel
who had defended Madame Rachel at the previous
trial with the result that the jury were unable to
agree, although his statement had been supported
by no evidence, was betrayed into the indiscretion
of calling witnesses. In the old days, and before it
was lawful for prisoners to give evidence, it was
an accepted tradition of the Bar that in a " shaky "
case it was as a rule unwise to call witnesses for
the defence. The discretion of Counsel about the
matter was, however, occasionally over-ruled by the
client or his attorney. Indeed there was a story that
on one occasion a celebrated defender of prisoners,
having been forced by his attorney to call witnesses
on the prisoner's behalf, did so with the result that the
accused was sentenced to be hung ; and that the
counsel, so soon as he met the attorney outside the
Court, remarked to the latter, " Sir, when you meet
that unfortunate client of yours, as you certainly will
do " (well, at a place not marked on any authentic
map), "go down on your knees and beg his pardon for

246

Trial of Madame Rachel

having sent him where you find him by having made
me call those witnesses." The calling of witnesses in
Madame Rachel's case was as little successful as it
had been on the occasion just mentioned. One of her
principal witnesses, when pressed on the subject, would
only swear that the so-called Jordan water "came from
the East"; and when it was suggested that "the East "
possibly meant Whitechapel, could say no more than
that the water was duly consigned by "an agent."
In summing up, which he did with characteristic
brevity, Commissioner Kerr did little more than tell
the Jury that " the charge substantially was that the
prisoner, by representing that the marriage was about
to be effected by her means between the prosecutrix and
Lord Ranelagh, had induced Mrs. Borradaile to part
with large sums of money and with property of con-
siderable value. . . . The jury must be satisfied that,
by the representations of the prisoner, Mrs. Borra-
daile was induced to part with her money, and that
these representations were false and fictitious/' The
jury, after a short deliberation, found the prisoner
guilty. In passing sentence, Commissioner Kerr
remarked to the prisoner, " You pillaged her of every-
thing she had," and inflicted a punishment of five
years' penal servitude.

Opinions differed as to the mode in which the
Commissioner had tried the case. A single specimen
of the views on each side will suffice. Said the
Times: "Whatever may be the satisfactory features
of the case, we fear that we cannot include amongst
them the fact that it was tried by Mr. Commissioner
Kerr." Retorted the Daily Telegraph: "Mr. Com-

247

Commissioner Kerr

missioner Kerr will undoubtedly stand higher in pro-
fessional repute for the signal ability which he displayed
in his summing up of this very intricate enquiry."
The impartial remark of the cautious Express con-
veyed the exact and accurate truth when it said:
" Our contemporaries take different views of the
judicial conduct of Mr. Commissioner Kerr, some of
them thinking that his impartial summing up will add
to his professional reputation, and others maintaining
it to be an unfortunate circumstance that the case
was tried by him."

The severe sentence, as it was admitted to be, which
the Commissioner had passed, led to an appeal being
brought, with the Commissioner's consent, to the
Court for Crown Cases Reserved. In an earlier
chapter, it has been pointed out to have been at that
time the subject of much doubt whether the provision
in the County Court Acts, 1865 (sec. 4), and 1867
(sec. 35), by which the old name of the Sheriff's Court
had been taken away and the new one of " The
City of London Court " was substituted x had not had
the effect of there being no longer any " Sheriff's Court
of London " in existence, so that Commissioner Kerr
could no longer sit at the Old Bailey, by virtue of a
Commission directed to him as " Judge of the Sheriff's
Court." Consistently with the view taken, when the
House of Lords, in Mr. Osgood's case (that of the
superseded Registrar) decided that the Constitution
of the Court remains unaltered though its name (and
that only) has been changed, indeed in accordance
with it, the Court for Crown Cases Reserved (as was

1 See Ante, Chap. V. pp. 155, 158, and 168.
248

Legal Importance of Rachel's Case

also mentioned in the previous chapter) unanimously
held that the Jurisdiction of a Judge of the City of
London Court to sit at the Old Bailey, under a com-
mission directed to him as Judge of that Court (which
was formerly called the Sheriff's Court) still remained
unaltered.

A point of great practical importance with regard to
the constitution of the Old Bailey was also settled by
Madame Rachel's case, to which reference has just
been made. For it was there decided that, though
power to sit at the Old Bailey is given to the
Commissioners named, "and any two" of them, yet
the two 'sitting together need not necessarily be the
same two. Commissioner Kerr, till this had been
actually decided, felt very great doubts on the question,
and advised that during any trial, the same two
Aldermen should always sit with him. One day, it is
said, a tired Alderman desired to leave, and asked the
Commissioner if he could do so. He was told that
he could not. " Why not ? What good am I ? " he
plaintively inquired. " About as much good as one of
the wax figures from Madame Tussaud's," rejoined the
Commissioner ; adding, " but if Parliament chose to
say I must keep one of these always beside me in
Court, I should have to do it." The Court for Crown
Cases Reserved got over the point that one Commis-
sioner sitting alone would not suffice at a trial,
by saying that the ordinary practice at Assizes
shows that two Commissioners need not be sitting
together, but that it will be enough if any two of them
are sitting at one time in separate parts of the same
building. This supposed analogy furnished by

249

Commissioner Kerr

assizes, where it is the practice for each of the two
presiding Judges to occupy different Courts, furnishes,
in truth, really no analogy. For at assizes the clerk
of assize is always "in the Commission." The latter's
being present with the Judge satisfies the terms of
the Commission, which requires that it shall be exer-
cised by the Commissioners to whom it is addressed,
"or any two of you." It indeed has happened,
within the writers personal knowledge, that a
verdict was once set aside by the Home Office
as a nullity, and the prisoner set at liberty, where it
had been taken, in the early morning, by an official
of a Circuit, and a Barrister on it, and in the absence
of both the Judge and of the clerk of assize. The
decision of the Court for Crown Cases Reserved
said that a trial at the Old Bailey is regular,
even although the same Alderman was not present
throughout it. But the fact that the Court for
Crown Cases Reserved took time to consider its judg-
ment, and that this, when at last delivered, contained
the flaw in its argument which is pointed out above,
shows that the doubts entertained by the Commis-
sioner were not unreasonable.

Commissioner Kerr, when presiding at the Old
Bailey, or as a magistrate, displayed in a different form
that characteristic love of strict justice, with an anxiety
to protect the public interests,1 that kindly sympathy
with the oppressed and poor, which distinguished him
when sitting in his Civil Court, and also those peculiar
personal views on technical matters of detail, such as
dislike to many or long speeches, and to " full " notes,

1 See ante, Chap. VI. p. 208 et seq.
250

Some Terse " Summings-up '

and a love for terse summings-up to the jury, which
he habitually showed in his Civil Court. Once, too,
he delivered a record summing-up in a criminal
case. Just as he had once summed-up a civil case in
two words,1 so he summed-up a criminal one in three.
An evidently " old hand " concluded a long speech,
betraying too much intimacy with the procedure and
phraseology of Courts of justice in the speaker to
permit of it being supposed that he was in one for
the first time, by remarking, " And now, gentlemen,
I have no more to add." "Nor have I," said the
Commissioner to the jury by way of summing up !

Commissioner Kerr's intense love of strict justice
led him to appear stern and unyielding, and to be
regarded generally by those who did not really know
his character, as being " a severe Judge." Yet he
was never an unpopular one, and, as will appear more
fully presently, knew well how to temper strict justice
with mercy, when circumstances called for this.

Just as a Judge in a Civil Court gets to recognise
particular classes of suitors, and to deal with them,
speaking generally, on their merits as a class, so does
a Judge in a Criminal Court soon grow to recognise
particular classes of prisoners and particular types of
crime.

With hardened and habitual criminals the Com-
missioner always dealt severely. As he once remarked
to the writer, ''As a rule, it is useless to give another
chance to a coiner who has been convicted a second
time. If he dies while under sentence, no harm is
done, for he never will be of any good."

1 See ante, Chap. VI. p. 224.
251

Commissioner Kerr

So again he always dealt with stern, unflinching
justice with persons who had been guilty of crimes
of savage cruelty and violence, for he had no sym-
pathy with them. Garotters dreaded him. More-
over, upon those who had assaulted defenceless
women and children he always "came down hard."

His desire to protect the interests of the public,
especially those of the poor, made him again especially
severe upon those whose actions were dangerous to
the public health. Just as, in his Civil Court, those
who endangered this by letting unwholesome houses,
with their drains out of order, were reminded by him
that property has its duties as well as its rights, and
the Billingsgate ring, who put off bad fish upon the
hawkers, found themselves punished in their pockets
when the Commissioner could reach these vulnerable
places, so also those who sent unwholesome meat to
market met with severe personal punishment at his
hands. The following is an instance taken from the
City Press, of December 5, 1863 : —

At the Central Criminal Court on Wednesday, before Mr.
Commissioner Kerr, Alexander Stewart, a pig dealer residing at
Cooper Angus in Perthshire, was indicted for sending a quantity of
diseased meat to Newgate Market, on the 24th of September last.
The prosecution was instituted by the Commissioners of Sewers of
the City of London. The evidence clearly showed that the prisoner
had purchased two cows when suffering from lung disease, for the
sum of ^3, and had them slaughtered, the animals dressed, and
quartered them in the usual manner, and consigned the quarters to a
salesman in Newgate Market for sale. Four of the quarters were,
however, seized in London, and condemned as unfit for human
food. The prisoner was convicted, and sentenced to be imprisoned
for twelve calendar months, to pay a fine of £50, and to be further
imprisoned until the fine was paid. It came out in evidence during

252

Severe on Dealers in Diseased Meat

the trial that hundreds of diseased animals had been sent up for sale
to the London markets from Cooper Angus alone. It is to be
hoped, therefore, that these sentences will have the effect of greatly
diminishing the infamous traffic.

It appears that "the infamous traffic" thus exposed
and punished still continued, for in the following year
there appeared the following in the Lancet for
April 1 6 (1864):—

We direct attention to the trial of John Thomas Teasdale, a
respectable looking young man, a butcher at a place called
Pinchbeck, near Spalding, in Lincolnshire, who was found guilty of
a misdemeanour for having sent to a salesman in Leadenhall
Market a quantity of meat that was not fit for human food. The
trial exhibited a state of things which the metropolitan authorities
are determined to check. The beneficial results of the vigilance
which has been exercised, and of the direction of public attention to
the importance of the prevention of such foul practices, are now
manifest. It was shown that the prisoner purchased a cow, knowing
her to be in an advanced stage of disease, that he had her slaughtered
and dressed, and consigned her to a London salesman, Mr. Lee, of
Leadenhall Market, who, on the arrival of the carcase, immediately
observed the condition, and communicated with Mr. Wylde, one of
the inspectors of the market, who seized and destroyed it. The
jury found the prisoner guilty, but recommended him to mercy on
account of his youth. Mr. Sleigh, who prosecuted, informed the
Court that notwithstanding the numerous convictions for this offence
that had taken place, there had been no less than two hundred
thousand pounds weight of diseased meat seized in the markets
belonging to the City of London during the last year. Mr.
Commissioner Kerr, before whom the case was tried, said the offence
was a serious one, it was the poorer classes who were most likely to
be sufferers by such proceedings, and, under all the circumstances,
while fully desirous to give effect to the recommendation of the
jury, he felt it his duty to sentence him to be imprisoned for four
months, and to pay a fine of ,£50, and to be further imprisoned till
that fine is paid.

This is the only way in which a stop can be put to this dangerous

253

Commissioner Kerr

and disgraceful practice. Mr. Commissioner Kerr well maintains
his reputation as a discriminating Judge, in not permitting the
incomprehensible recommendation of the jury to prevent him from
inflicting adequate punishment. It is a question of common
interest, because one of public safety, that every effort be made to
preserve the health of the poor, and prevent the crowded metropolis
being the centre of infectious disease, of which there is no more
certain source than diseased food, in conjunction with crowded
dwellings. The name of Mr. Lee, the meat salesman of Leadenhall
Market, is deserving of honourable mention for the promptness he
displayed in bringing to justice one who sought to traffic in food
unfit for the maintenance of human life.

It has been already said that the punishments
inflicted by the Commissioner upon those who com-
mitted savage crimes of violence, such as garotters,
were usually severe — so much so that these criminals
dreaded him. Public opinion generally appears to
have approved of his sentences. The following
extract is taken from Punch of September 6, 1873 : —

PENAL PRACTICE OF MEDICINE.

The legal profession has an ornament in Mr. Commissioner Kerr,
who, if his lot had been cast in the profession of Physic, would have
equally adorned that. Such, at least, is the supposition suggested
by the subjoined extract from a column of news : —

Two men, named Pillard and Ives, having been convicted of a robbery with
violence, on a tram conductor at Holloway, the learned Commissioner said for the
last few sessions there had been a remarkable absence of such offences from the
calendar, and he had hoped that the sentences ordinarily pronounced for that class
of crime had, at last, succeeded in deterring persons from engaging in it. This,
however, was a very bad case and, being determined if possible to put down the
system, he should sentence the prisoner to be twice flogged — twenty lashes upon
each occasion. Pillard must be kept in penal servitude for fifteen years, with five
years subsequent police supervision, and Ives must be imprisoned, and kept to
hard labour, for two years. Lewis Taylor, for a robbery with violence at Muswell
Hill, was sentenced to seven years' penal servitude, and five years' subsequent
police supervision, and to be twice flogged, receiving each time twenty lashes with
the "cat."

The foregoing piece of satisfactory intelligence evinces a percep-
tion, similar to the medical sense which, when a remedy of known

254

Severe on Personal Violence

efficacy fails to do all the good expected from it, tells the prac-
titioner to increase the dose, and to prescribe its more frequent
repetition. If necessary to put down garotting, the judicious, as
well as judicial, doctor will not shrink from the prescription of
some thirty or more stripes, three times a year or so. The Home
Secretary would do well to have the above, and every similar record,
printed in the form of a bill to be extensively posted about the slums
and elsewhere, for the edification of the ruffianly classes. The
warning thus given them would tend to prevent the necessity of
inflicting a painful and degrading punishment on our fellow-man.

While Commissioner Kerr's sentences upon those
who assaulted women and children were usually
severe, he nevertheless knew how to temper this
severity with mercy when the circumstances of the
case so required. In April, 1872, he passed a sen-
tence upon a man who had ill-treated his wife which
the newspaper critics considered to be too lenient.
Numerous paragraphs about it appeared in the Press,
and Punch had a cartoon representing two scoundrels
comparing sentences in prison, which appeared to
suggest that, in this century, a man usually gets a
much lighter sentence for ill-treating his wife than
he would for so treating any other woman.

The Law Times of April 20, 1872, remarked that
" there must have been some good ground, . . . for
the learned Commissioner is not a lenient judge."
The Law Magazine for May, 1872, declared : " No-
body who knows the Commissioner would suspect him
of undue leniency, or of any tendency to rose-water
theories."

Both papers deprecated the fashion — now becoming
again so prevalent — of "Trial by Newspaper."

The Law Magazine complained of " the ever-ready

255

Commissioner Kerr

assertion of a class of newspaper writers who are
prepared, at a moment's notice, to write an authorita-
tive comment upon the heaven or earth, or under the
earth. Decency might suggest that a court, with all
the facts of a case before it may have at least a chance
of being right as these writers themselves, whose in-
formation is derived through reports obtained not
seldom from the lower class of reporters."

Neither the devices of prisoners nor the comments
of newspapers prevented Commissioner Kerr from
passing the sentences he considered that justice
demanded. In 1886 a prisoner named Clifton tried
to impose on him by asking for an adjournment in
order that his career as a " respectable accountant "
might be inquired into. Mr. Commissioner Kerr at
once ascertained that he was a wholesale swindler
who was said to have committed many frauds. Then
Clifton tried to frighten his Judge by telling him he was
known to be the most severe on the Bench. Here,
too, his cunning miscalculated. The Commissioner,
neither deceived nor frightened, sentenced him to five
years penal servitude !

No Judge, however, has ever sat long on the Bench
and sentenced criminals without becoming the subject
of a newspaper attack.

Just as Commissioner Kerr's sentence in the above
case appeared too light in the judgment of the critics
of the newspapers, so in another case they were said
to be too heavy. On October n, 1886, a letter in
the Daily Chronicle from " A Solicitor " complained
that the Commissioner had recently sentenced a " boy
of 17" to five years penal servitude for " simple

256

Justice of Sentences by

larceny in stealing 33. 6d. and a bag purse from
Hannah Dunat Within." A few days later "A
Middlesex Magistrate " wrote to that paper, pointing
out that "the boy of 17" was of that age when first
convicted in 1883 ; that the young hopeful had been
convicted five times since then (i.e., in three years),
and had given one name on two of these occasions,
and another on each of the other three !

Some offenders whom he had dealt with once gave
singular evidence as to the justice, as a rule, of the
Commissioner's sentences. From the City Press of
August 7, 1901, we learn that the Commissioner held

a very high opinion of the valuable work done by Mr. Wheatley and
the St. Giles Christian Mission in reclaiming criminals. On one
occasion he was present at the thieves' annual supper, held in Little
Wild Street. Twelve reformed criminals, who were sitting at a table,
were asked by the Judge to say how many of them had been tried
before him. It appeared that seven had "done time " as the result
of the Commissioner's sentences. The seven were invited to hold
up their hands, if they thought they had not deserved the punishment
which was given to them, and not a hand was raised.

Moreover, in a well-known book called Confessions
of a Ticket- of -leave Man, the writer, in Chapter
XXIII., gives two instances which show that the
Commissioner not only tried to make his sentences
appropriate to the offence, but endeavoured to
reclaim the offender, on at least one occasion with
entire success. In the writer's own words : —

To show how easily young fellows are led astray, I will relate an
instance of dishonesty which came under my notice in Wands worth.
A young man, who was the son of a gentleman who occupied a
responsible position in a receiving office of a railway company in

257 s

Commissioner Kerr

the City, had got into fast company, and especially that worst of
bad company which is comprised of the fast publican and betting
men element. He had been tempted by these persons to steal some
of the parcels entrusted to his father for transmission to their proper
destination, and had stolen a parcel of silk worth £100 and a box
of tea. These goods he had taken to the publicans for disposal,
and they had sold them, the thief receiving only a small portion of
the proceeds.

That most just of Judges — and every occupant of Her Majesty's
prisons knows how just he really is — Mr. Commissioner Kerr
sentenced him to what was practically three months' imprisonment,
a very light sentence considering the important nature of the theft.
But the publicans got eighteen months apiece, which they well
deserved. Speaking of Mr. Commissioner Kerr reminds me of
another case. A junior clerk in the City, aged seventeen, curiously
enough a teetotaler, had got into bad company, and forged a cheque
for ;£8 belonging to his employers.

Mr. Commissioner Kerr took the case in hand, and referred the
lad back to the House of Detention, where he was seen by the
Chaplain, and by Mr. Wheatley, the Secretary of the Prisoners' Aid
Society (a most excellent institution). These gentlemen reported
favourably upon the case, and the Commissioner sentenced him to
the nominal term of two days' imprisonment, and had him sent out
to Canada, where he is doing well.

Mr. Commissioner Kerr is supposed to be hard, but it is only
those who do not deserve good treatment to whom he is severe.

Parliament has only quite recently discussed the
question of whether it cannot be arranged, that
prisoners shall not in future go undefended for want
of means, but that proper cases shall be investi-
gated by a solicitor, and defended by junior members
of the Bar. Great practical difficulties no doubt stand
in the way of any such arrangement being made,
especially as the guilt or innocence of a prisoner is
determined in a much more satisfactory way by
inquiries made previously to his trial into the cir-

258

On Poor Prisoners' Defences

cumstances surrounding the case, and the antecedents
of the accused, than they are by any efforts, how-
ever excellent, made by Counsel in Court. The
Bar Council had previously considered the matter.
At one Sessions, viz., the Dorset, thanks to the
efforts and ability of a well-known social reformer who
is its leader, arrangements with the object described
had then been already completed. But the Attorney-
General, on being appealed to by the Circuit to stop
the practice, declared it to be contrary to the usage of
the English Bar.

It will not surprise those who know Commissioner
Kerr, his intense love for justice, and his deep sym-
pathy with those whom he thought oppressed, to read
the following extract from a paper published over forty
years ago, viz., on April 15, 1860 : —

Mr. Commissioner Kerr, at the last sitting of the Central Criminal
Court, said he would be glad to see the younger members of the
Bar defend all cases of the poor prisoners, which were undefended,
and would afford all facilities in his power for the purpose. It was
the custom of Scotland, where all criminal cases of poor persons
were defended by the younger advocates free.

The methods of the Commissioner as the Judge in
a Criminal Court naturally lent themselves easily to
parody. Subjoined are one or two extracts from the
comic press of the day, containing this :—

MR. COMMISSIONER KERR AT THE OLD BAILEY.

TIME : Generally a Tuesday, when it is seen that the work is too
heavy for the other Judges. Mr. Commissioner Kerr is then sent for,
and arrives hurriedly. Scarcely waiting to be ushered in by the
sheriff in attendance, he dashes into Court, and begins the business.

259

Commissioner Kerr

The Court is that known as the fourth Court, a little room just able
to hold six barristers, six solicitors, the jury, the prisoner, the Judge,
and his clerks, and three or four of the general public. Owing to
the long list of cases there is usually before Mr. Kerr, there is a large
quantity of what is professionally known as " soup " to be struggled
for by the briefless among Counsel, the aforesaid " soup " consisting
of briefs to be held for the Court in defended cases in which no
Counsel have been instructed privately.

Mr. KERR : Seven defended cases. Here, Mr. Muddle ! (tosses
the papers down to the clerk of the Court, who in turn passes them on
to the thenceforward happy Mr. Muddle, who at once becomes the
object of envy and hatred on the part of those remaining" soupless ").
Fortunately, this will soon be arranged outside the Court, when the
public prosecutor comes into office.

A Juror : My Lord, it is at great inconvenience I am summoned
here to-day. I am the manager of a large daily paper, and I am
given to understand that you would excuse my

Mr. COMMISSIONER KERR : On the contrary, yer just the vara
mon I want. I wish they would summon all the managers of news-
papers to serve on the jury. They would then see the necessity for
a public prosecutor. Go on with the case (a prisoner having been
put into the dock).

Mr. BRIEFLY (rising to address the learned Judge). May it
please your lordship, in this case I have consulted with my learned
friend on the other side, and we have arrived at the conclusion that,
since the prisoner was committed for trial, evidence has turned up
which puts a very different complexion on his conduct. I shall put
that fresh evidence before your Lordship, and shall ask that the pro-
secutor be allowed to withdraw from the case.

Mr. COMMISSIONER KERR : Of course, I see through it all. The
per — rosecutor has got his money back, and, no doubt, security for
costs, so he wishes to withdraw. (To the jury generally, but to the
newspaper juryman in particular.) You see, gentlemen, it is just as
I thought. The vara first case illustrates what I was saying as to the
crying necessity for a public per — rosecutor. Here's a man who, for
his own private ends, chooses to put the cur — riminal law in motion,
the country is put to a great expense, and we are brocht here
to be made fools of. This could not be done in Scotland,
gentlemen.

Mr. BRIEFLY : Perhaps, when the jury have heard the facts, they

260

Parody on Demeanour in Crown Court

will agree with me that it is fortunate for us all that we are not dis-
pensing the Scotch law here at present.

Mr. COMMISSIONER KERR : Of course, I am powerless in the
matter. Proceed. (Looks up suddenly.) There is a great noise in
Court. I suppose, it being a wet day, those gentlemen (pointing to
two or three at the back of the Court) have found all the neighbour-
ing public-houses full, and have come here to talk over business
under shelter. By all means. Stop the business of the Court till
they have finished. Thank you (the case is proceeded with for some
little time). Tut ! tut ! tut ! Who is that interrupting the Court
now? Remove that person (some one talking to Mr. Briefly).

The Offender : I am the solicitor engaged in the case, my
lord.

Mr. COMMISSIONER KERR : I really can't help who you are.
Remove him.

The Offender : But, my lord ... (is pushed out of Court, and
runs against a friend).

The Friend : What, turned out ? Why, of course. Don't you
see you've got a red necktie on ? Here, change with me.

(The change is made, and the offender again enters Court without
exciting Mr. Kerr's attention, the case having been disposed of
according to Mr. Briefly 's suggestion.)

The next case is called on. This is a case of robbery from the
person of a very stout man. This is one of the " soup " cases so
liberally bestowed on Mr. Muddle, each of which is worth to that
favourite of his lordship, from one to three guineas of public money.
The first witness, the prosecutor himself has just been examined in
chief.

Mr. COMMISSIONER KERR : And you mean to say that you walked
about with your coat unbuttoned, with that watch chain protrudingly
displayed upon your stomach ? Och ! Och ! It's sad to think that,
to feed his vanity, this man has probably led an innocent, ignorant
fellow-creature into crime, and put the State to an expense of £30
(pushes away his table in disgust). Who defends in this case ?

Mr. SMALLWEED (speaking from the attorney's box, not having
been able to find a seat among the six open to Barristers) : I do, my
lord.

Mr. COMMISSIONER KERR : Then pray step into the place
allotted for Counsel. I cannot hear you from that bench.

Mr. SMALLWEED : Certainly, my lord. (Aside to brother Barristers.)

261

Commissioner Kerr

Make room for me, will you ? (Lifts his gown and climbs over the
partition into the regulation seat.)

Mr. COMMISSIONER KERR (looking up surprised, and not to say
indignant). Och ! Och ! Tut ! Tut ! I cannot have Counsel hopping
about my Court like a lot of ballet girls. But there ; go on with
the case. (Resumes his ordinary position at his desk, and the case
goes on. The time for the Judge's summing up is ultimately
reached.)

Mr. COMMISSIONER KERR : Gentlemen, you have heard the
evidence in this case, use your intelligence and find your verdict.
(The prisoner is found guilty.)

Mr. SMALLWEED : In mitigation of sentence, my lord, may I urge
that the prisoner has a wife and two children dependent upon him.

Mr. COMMISSIONER KERR : Rubbish ! Of course you have been
instructed to put that forward, but let me tell you that, to my mind,
that is the most damaging part of the whole case. He ocht to have
thocht of them before entering on a career of crime. He must be
imprisoned with hard labour for two years. At the same time, I
shall mark my sense of the prosecutor's conduct in walking about
the streets, offensively exhibiting on his stomach a temptation to
the needy, in the shape of a gold chain, by disallowing him his costs.
Such ostentatious display of wealth should be put down by a strong
hand.

The following is one of the " Sketches in Court "
(No. III.) published by the World. It appeared in
the issue of that paper for August 21, 1878.

COR. MR. COMMISSIONER KERR.

Mr. PERCY BENT : Will your lordship allow me

Mr. COMMISSIONER : Sh ! Sh ! Mr. Bent ! Aw 'm afreed we're
interruptin' the converseetion of these gentlemen (pointing to some
of the Bar), an Aw 'm sure ye're too polite to wish to continue after
the fawct has been pointed out to ye. Silence having been restored —
Mr. PERCY BENT : Will your lordship allow me to mention the
case of the " Queen v. Robinson," which stands first on your lord-
ship's list for to-day. I am instructed for the prosecution, together
with my learned friend Mr. Capulet Wilson. Unfortunately, Mr.

262

Parody on Demeanour in Crown Court

Wilson is just now engaged in another Court, but if your lordship

would take another

Mr. COMMISSIONER : Ye want the case postponed !
Mr. PERCY BENT : That is the application which I have to make.
I am, of course, entirely in your lordship's hands.

Mr. COMMISSIONER : In my hands, Mr. Bent ! It's the Court that
is entirely in the hands of the Bar, and will be sae, I suppose, until
the legislature appoint a public prausekeetor.

Mr. PERCY BENT : Until that much to be desired event takes
place, my lord, Counsel, as your lordship sees, find it somewhat
difficult to be in two places at the same time, and I trust that you
will accede to my application.

Mr. COMMISSIONER : Of coorse, of coorse, Mr. Bent. It's quite
suffeecient reason, apparently, for its postponement that a ceese stands
fairst on the list. Meanwhile is thar any ceese ready to be tried ?
If sae, in the name of gudeness let's hev it !

Robert Sykes is here put into the dock, and charged with steal-
ing the sum of two shillings from the prosecutor, John Williams.
Counsel for the prosecution having opened the case :
John Williams is sworn and deposes : At twelve o'clock on the
night of June 29th, I saw the prisoner at the Red Cow public-house

in Seven Dials, and

Mr. COMMISSIONER : Let me ask ye, Mr. Williams, were ye
dressed in the same manner as ye are now ?
J. W. : Yes, my lord.

Mr. COMMISSIONER : WThat ! Wi' that gold chain on your neck,
and those fine rings on your fingers.
J. W. : Yes, my lord.

Mr. COMMISSIONER : If piple are jest inseen enough to walk
about in sech a place, at sech an hour, bedizened wi' joolry,
and hanged about wi' goold chains, they can't be surprised if they
are robbed. At any rate I'm not. Well, what about the two
shillings ?

J. W. : Well, my lord, I took two shillings out of my pocket, and

put it upon the counter, and when my back was turned

Mr. COMMISSIONER : Exactly ! I suppose the two shillings were
gone? What else, man, did ye expect? And how do ye know the
prisoner took them ?

J. W. : He was close beside me at the time, my lord.
Mr. COMMISSIONER : And was there nobody else beside ye ?

263

Commissioner Kerr

J. W. : There were other people in the place at the time my lord,
but the prisoner was the one nearest.

Mr. COMMISSIONER (to Counsel for the prosecution) : Have ye
any more witnesses, Mr. Smith ? If sae, call them.

Mr. SMITH (Counsel for the "prosecution) : Only the policeman
who took the prisoner into custody, my lord.

Mr. COMMISSIONER : Call him, call him.

Police Constable sworn, and deposes to having taken the
prisoner into custody, and found two shillings on his person.

Mr. COMMISSIONER (to Mr. Jones, Counsel for the defence) : I
suppose ye'll be requiring to make a speech. Since the passing of
that ineequitous Awct — Denman's Awct — Judges are bound to groan
under the infleection of five speeches instead of three.

Mr. Jones addresses the jury for the defence, during the delivery
of which Mr. Commissioner raps impatiently upon the desk before
him with his pencil, dashes his handkerchief into either eye, and is
heard to utter broken ejaculations having reference to Denman's
Act, and a public prosecutor. At its conclusion —

Mr. COMMISSIONER (to jury) : It's for you to say, gentlemen,
whether ye can attach any credence to the statement of a man
confessedly so inseen as the prausekeetor, a man who walks about
Seven Dials at twal' o'clock at night, hung in joolry, and sech like.
If ye do believe him, ye'll find the prisoner guilty ; if not, ye'll
just acqueet him.

The jury return a verdict of " Not guilty."

Mr. COMMISSIONER: The preesner's discharged. Whar's the
prausekeetor ? (Prosecutor presents himself.) Ye'll just understand
that I'm not going to allow ye your expenses for coming here. It
will be some satisfaction, however, for ye to refleck that this two
shilling job of yours has cost the country more than all the taxes ye
ever paid, or are likely to pay, if ye live to the age of Methoosela.

A St. Pancras local paper, under the heading of
" Do you know them ? " gave " A series of Word
Sketches in which we try to portray the men we
meet with in life." Evidently the writer of the sub-
joined article well knew Commissioner Kerr, who had
until the previous year been for four years Chairman

264

General Aspect of Character as Judge

of the St. Pancras Board of Guardians.1 In the
Guardian and Reporter for March 6, 1886, appeared
one of the above sketches — No. IV. :—

DUGUID JOCARR, ESQ.

Age, about 60 ; height, somewhere between 5 feet 6 and 6
feet ; weight, about 1 3 stone ; dress varies much, almost im-
possible to describe, but usually a somewhat seedy cutaway black
coat, with similar unmentionables, an old-fashioned, high-cut,
rounded-end collar, and no display of jewellery ; manner (depend-
ing entirely upon where or how engaged), equally difficult to
portray ; lineage, from the " North countrie," and there it goes
back to the forty-second or third generation — even the G. O. M.
claims some of the blood, and many others too — when it suits their
purpose.

To say that the subject of our sketch is an ill-abused man, would
not be strictly accurate, neither would it be right to say that he
is well abused; but that he often calls for condemnation from
his dogmatic utterances, we have no manner of doubt. As a
' ' King of his own castle " he uses his power sometimes indiscreetly,
often wisely, and occasionally ridiculously. " Don't talk to me of
the law ! I can tell ye my little finger kens mair about it than half
the folk who come here to tell it me." His great forte however is
his common sense (we once heard a man — not a fool either — say he
was glad it was not common). Very many years ago a " puir
body " said that he had sent a lot of material to be manufactured,
and, being a large order for him, he wanted some of the goods
before the bulk was delivered. That first delivery was satisfactory,
but when the bulk was sent in it was not only badly done, but the
material was spoiled. Whereupon our good friend, the subject of
our sketch, said somewhat roughly, " Ye hae broken bulk, ye maun
pay." The " puir body " tried to remonstrate, and did succeed in
getting out the words, "If ye were to order a suit of cloes, and ye
wanted the breeks first badly, and ye had them sent home, and thae
fitted a' richt, would ye be compelled to keep the waistcoat and coat,
if they didn't fit, when thae cum home, and yere ain claith too?"
The response was, " I tell ye ye've broken bulk, and ye maun pay.

1 As to this SQQpost, Chap. IX. at pp. 279 et seq.
265

Commissioner Kerr

The next case." And what is more, the " puir body " did pay. He
afterwards took legal advice, sued the man that had spoiled his
material, but, before the second trial came on, this man became
bankrupt. So, through no fault of his own, the " puir body " had
to pay for his whistle very dearly.

It's a dark cloud that has not a silver lining. A " lang time syne,"
we had to act as a juryman at a Criminal Court, and then our sketch
was differently attired, both in dignity and demeanour. In this
instance he behaved with all the solemnity appertaining to an
" English Judge of high degree." An old man had been brought
before him for embezzlement : the facts were clear against him, but it
came out that the poor man, for the sake of keeping up a false
appearance for himself and his family, had used the embezzled
monies to contribute to the building fund of a church in the district
in which he resided. His employers, his minister, his friends, all
pleaded for a lenient sentence, and the Judge, with "words of
admonition due," took the pleadings to heart. With tears in his eyes,
the writer's, and almost all in Court, he sentenced the poor wretch to
the lightest sentence the law allowed. " One touch of nature makes
the whole world kin," and this one touch raised our subject far
higher, in our estimation, than all the other stories about him have
a tendency to lower.

Another position in life to see him in (and which perhaps is the
more natural one) is when he fulfils a citizen's part, from the eleva-
tion "to which God has been pleased to place him" — as a J.P.
He was qualified to preside for some time over the deliberations of
a somewhat obstreperous " Board." Although he was often bored
there, he managed to give much satisfaction to all the unbiassed
members of that august assemblage. Times, alas ! are changed,
law gives place to Church,1 and Church takes care to air his know-
ledge of chairman's law as freely as our sketch aired his.

After all, it's hard to say how most of us would act, had we two or
three thousand a year " certain." For life we might do better (?),
but (and here be it noted seriously) " we micht due waur."

1 The Commissioner was succeeded by a clergyman in the
Chairmanship of the Board of Guardians. See post, Chap. IX
at p. 286.

266

CHAPTER VIII.

THE PART PLAYED BY THE COMMISSIONER IN PASSING
POLITICS, AND POLITICAL VIEWS HELD BY HIM.

THE Judges of the City of London Court, as it is
now styled, and of the old Sheriff's Court on
which it is founded, always possessed, and still enjoy,
the now unique privilege of being able to sit in Parlia-
ment. Their office is held under, and paid by, the
City of London. Consequently, though a presenta-
tion by the Crown of that office to an M.P., vacates
the seat in Parliament held by the presentee, he is,
even now, eligible to still sit in Parliament if re-elected
thereto.

Commissioner Kerr, having been appointed to his
office by the Corporation of London, was clearly at
all times eligible to sit in Parliament, could he have
obtained a seat there.

That he never did so was not due to any lack of
effort on his part. In the twenty-one years which
immediately followed his appointment to the Judge-
ship of the City Court, Commissioner Kerr made no
less than six different efforts to obtain a Parliamentary
seat — first at Wolverhampton, and subsequently, after
short intervening intervals, three such attempts at

267

Commissioner Kerr

Shrewsbury, and one again each at Peterborough and
at the Kilmarnock Boroughs.

In the early summer of 1861, it was rumoured that
Sir Richard Bethell, who will be recollected to have
been amongst those who gave testimonials to Mr.
Kerr, was about to be made Lord Chancellor. His
appointment would create a vacancy in the Parlia-
mentary representation of Wolverhampton, for which
he was then M.P. The Commissioner aspired to fill
the vacancy when it arose. He, accordingly, went
down to Wolverhampton, did a couple of days' canvas-
sing, and then placed himself in the hands of the local
Liberal party, whom he found " had always acted
together." For, as he said, " I would be the last
person to create any division in their ranks." There
was need for the Liberal party to unite. The
Government desired the seat for Mr. Roundell Palmer,
but to many of the electors " the Tory and Puseyite
Q.C.," as he was locally described, was distasteful.
Several well-known Liberals were seeking the seat ;
and there was a danger that the Liberal divisions
would let it fall into Tory hands. Mr. Kerr, under
these circumstances, was loyal to his party. Their
choice fell upon Mr. Weguellin — a former governor of
the Bank of England. Mr. Kerr at once acquiesced
when he found that, to use his own words, "The
choice has fallen upon another," and on June 27,
1 86 1, issued a graceful address withdrawing from the
contest. In it he explained what had happened ; said
that he was "a thoroughly independent candidate,
the nominee of no party, and not pledged to
vote with any government " ; and explained his

268

General Political Views

general political views in the following interesting
words : —

I would, if elected, have given a steady and consistent vote in
favour of every measure, whether originated by the Government or
not, which met with the general acceptance of Reformers. I would
abolish Church rates, extend the suffrage so far as is necessary to
enfranchise every man of sufficient intelligence to give an honest
vote, and protect the elector by ballot. I would remove every
impediment to the extension of trade and commerce ; cut down the
expenditure of the country to the lowest sum consistent with
efficiency, and still further simplify and cheapen the administration
of justice.

Four years later, viz., in July, 1865, the Commis-
sioner again endeavoured to get himself selected as
the candidate of his party for a Borough seat.
Unfortunately no better success attended his effort
than that at Wolverhampton. Shrewsbury at that
time possessed two M.P.'s. One of these, a certain
Mr. Tomline, not content with reluctantly voting
against his party only when some exceptional and
grave occasion required him to exercise an independent
judgment, and conscience told him that loyalty to his
party would make him a traitor to his country,
habitually so voted, wherever he got the chance, and
did so on comparatively minor matters of no national
importance. A Mr. Clements came out to oppose him.
This gentleman appears to have been hardly more to
the taste of some of the tradesmen of the town than
the Liberal who, anticipating the " Liberal Unionist"
of the then future, habitually voted servilely with the
Conservatives. So the local Liberals sought about for
another candidate ; found one in the person of Mr.

269

Commissioner Kerr

Commissioner Kerr; and on the eve of the election,
brought him up from St. Leonards-on-Sea, where he
was recruiting his energies in the breezy sea air, to the
town of Shrewsbury. Mr. Clements, so soon as the
Commissioner's address appeared, announced his
intention of at once retiring. The Commissioner on
discovering this, adopted the same course as he had
previously taken at Wolverhampton, and attended a
party meeting to consider what should be done. The
meeting decided that it was undesirable to now (six
days only before the election) put forward another
Liberal candidate. The Commissioner at once with-
drew. To use the words of a local Liberal paper
(Shrewsbury Observer of July 8, 1865), " That gentle-
man, whose public conduct throughout the transaction
has been most straightforward and gentlemanly, and
who has been more sinned against than sinning,
immediately said that it was far from his desire to
cause a useless contest, and, as it did not appear to be
the wish of the meeting that he should stand, he at
once withdrew." So ended the first chapter of the
Shrewsbury episode in 1865, in which, to adopt the
language of the Liberal organ which has been quoted
from, " Mr. Kerr showed himself worthy of a better
fortune."

In 1866 Mr. Tomline, who had been again returned,
pursued his old ways of "gaining his election through
the exertions of Liberals, and, on all occasions when
questions of great importance are at issue, going into
the Lobby with the Tories." Mr. Kerr was again
communicated with, a defeat of the Government
having made it probable that there would soon be

270

Shrewsbury " Sell ' -Peterborough fiasco

a general election. In 1868 an arrangement was
made by which Alderman Figgins, an avowed Tory,
superseded the sham Liberal, Mr. Tomline. Up to that
date, Shrewsbury had for many years been a strong-
hold of Liberalism, but it is apparent that the local
Liberals there preferred a real Tory to a sham Liberal.
Mr. Kerr came down to Shrewsbury, but was induced
to assent to the arrangement, and to abstain from
coming out as a candidate, by a promise of undivided
support from the party whenever fitting opportunity
allowed. No further election, however, took place till
1870. When it did come, the Commissioner went
down again to Shrewsbury, expecting the fulfilment of
the pledge given to him by the Liberals of Shrewsbury
in 1868, that he should be the adopted candidate of
the party when fitting opportunity arose. " Mr.
Kerr's claim was pooh-poohed," says the local Liberal
journal, the "moral screw" being put on in favour of
"a namby-pamby named Cotes, whose only claim
upon the electors was that he was the son of his
father." The Conservatives gained the second seat on
the occasion of this contest, Mr. Douglas Straight (now
Sir Douglas Straight, an ex- Indian judge, who has
since become, and now is, the editor of the Pall Mall
Gazette] being returned as the colleague of Alderman
Figgins by a majority of thirty-eight over the "namby-
pamby young gentleman."

Four years again elapsed, and then, in 1874, the
Commissioner became, together with numerous other
Liberals, a candidate for the borough of Peterborough.
On this occasion he went to the poll, but was totally
unsuccessful, as he did not even get a position on the

271

Commissioner Kerr

poll which gave hopes for better success on a future
occasion. Truth to tell, he found himself hopelessly
left so low upon it that he quitted Peterborough for
ever!

The interval between the Peterborough election,
with its ignominious defeat, and another attempt
to enter Parliament was only three years. Mr.
Fortescue- Harrison had got himself returned for
the Kilmarnock Boroughs on the distinct promise
to the Irish electors there to vote for " Home
Rule." So, at any rate, declared Mr. Biggar, the
then manager of the Irish Parliamentary Party.
But Mr. Fortescue- Harrison declined so to vote.
Now the Irish electors are said to be a very important
body in the Kilmarnock Boroughs. The sitting M.P.'s
alleged " treachery to Home Rule," and other reasons
also, rendered a considerable portion of the electors
discontented with that Parliamentary representative.
Mr. Commissioner Kerr's friends in the Boroughs
communicated with him, and he doubtless considered
the question of contesting the Boroughs with a favour-
able inclination to so doing. On December 20, 1877,
as the result of a dark statement in The World
newspaper hinting that "a Scottish Barrister"
would, at the proper time, be found to contest the
seat, and in consequence of the Commissioner having
then lately addressed a meeting of the Catholic electors
at Dumbarton, practically on the question of religious
equality, Lloyd's Weekly News published an article on
the subject of his supposed candidature. In this
article Commissioner Kerr was violently attacked as
about to stand for the Kilmarnock Boroughs "as the

272

Contest at Kilmarnock Boroughs

protdge* of Messrs. Biggar, Parnell, and Co., as a
Home Ruler, and as a Tory." But in his address to
the Catholic electors the Commissioner had previously
rather gone out of his way to express his dislike to
Home Rule. In reply to the article he addressed
a letter to the Diimbarton Herald, again emphatically
expressing his dislike to that scheme.

About six months later, viz., on July 26, 1878, he
issued an address to the electors of the Boroughs, for-
mally announcing his intention to stand as a candidate
for their Parliamentary representation when opportunity
should offer. In the December following (1878) he
issued a lengthy address. The most interesting portions
of this (omitting passing or merely local subjects)
are as follow : —

In home politics the leading questions will be, I anticipate, the
County Franchise ; and in Scotland, at least, the Disestablishment of
the Church.

I do not see how the extension of Household Suffrage to the
Counties can be refused or opposed by those who granted it to
the Burghs ; but if effected by that party, it may be neutralised by
some kind of redistribution of the seats. This is what, it appears to
me, the Liberal party have to watch. As I regard our Municipalities,
which were the nurseries, to be still the depositories, of our Civil
and Religious liberties, I desire carefully to preserve and maintain
the Parliamentary as well as the Municipal privileges of the Burghs.

The Disestablishment of the Church of England seems to be the
only remedy for the evils which afflict it. But with regard to the
Church of Scotland the case is entirely different. I think it at
present not only impolitic, but unjust to those who are still without
votes, to make the question a test. It is for Scotland peculiarly
a national question ; and until the suffrage has been extended in the
Counties the national will cannot be truly ascertained. When
the people pronounce for it, Disestablishment shall have my support.
We need no extraneous assistance. Scotchmen have been trained

273 T

Commissioner Kerr

by three centuries of ecclesiastical discussion to deal with the
question in a manner consistent with their past history and their
highest inspirations.

In the Permissive Bill and in Home Rule many of the electors
take a deep and conscientious interest. Let me say at once that
I am not in favour of either.

No one is more sensible of the evils of intemperance than I am ;
but the Permissive Bill is not to my mind a practical remedy. I
will gladly welcome any proposal to lessen the evil I refer to, and if
the transfer of the powers of the Magistrates to Local Boards, elected
by and responsible to the ratepayers, is thought to be desirable, I
should gladly assist in effecting the change.

To Home Rule again, as meaning a Parliament in Dublin for
Irish, or in Edinburgh for Scottish affairs, I cannot agree. Govern-
ment by the people and for the people is a Liberal axiom applicable
to local as well as Imperial affairs ; and the principle of representa-
tive county boards having been agreed to by Parliament, their
creation for the whole United Kingdom is, I hope, not far distant.
I am prepared to assimilate the Irish franchise to that of England ;
still further to extend the principle of Mr. Bright's Act ; and
generally to place Ireland on the same footing in all respects as the
other parts of the United Kingdom.

These questions are all taken up by different sections of the
community; but one remains which affects us all, Taxation. The
surplus left by the late Liberal Government has not only disappeared,
but our expenditure has been, and is being, greatly increased by
what is called our Imperial Policy. Retrenchment is the professed
duty of the Liberal party, and I believe that our National Expendi-
ture can be considerably reduced without any risk to the efficiency
of the public services. This, indeed, has become a necessity if we
are ever again to compete with other nations, either in our commerce
or our manufactures.

As on more than one former occasion, Mr. Commis-
sioner Kerr was not allowed the privilege of a
single-handed, stand-up fight against the Liberal of
doubtful fidelity to his party, whom he had come
down to oppose, nor with a Tory. A Mr. Dick

274

Probable Political Failure

Peddle, an architect, of Edinburgh, and a leading
U.P. elder, came into the field not long subsequently
to the Commissioner taking it. Soon, as the Provost
of Kilmarnock, Provost Sturrock, told the electors
at a public meeting held there on January 15, 1880,
the electors of the Boroughs were, "happily or un-
happily" for themselves, "in the position of having
some four or five candidates all wooing." Under
these circumstances, the Commissioner's candidature
for the Kilmarnock Boroughs was as unsuccessful
as his candidature at Peterborough had been, and the
result of a poll of the electors was for him another—
and as it proved a final — defeat of his attempt to
enter Parliament.

The return of the Commissioner to Parliament in
1880 would probably not have been of much benefit to
either him or the country. Had he, indeed, succeeded
in earlier days in obtaining a seat in Parliament he
would unquestionably have done much good public
work, and introduced many valuable social reforms.
In those days, public services were even considered to
confer some claim to promotion to the Judicial Bench.
Even without a seat in Parliament, Mr. Commissioner
Kerr was often spoken of, at moments when his
brother Scotchman, the late Mr. Justice Blackburn,
was attracting the public notice as a great lawyer and
an excellent Judge, as likely to receive promotion to
the Bench of a Supreme Court. But during the last
thirty years Parliament has been almost exclusively
occupied with party questions and with Imperial
politics, and consequently has found little time .to dis-
cuss any minor measures of social reform for the

275

Commissioner Kerr

improvement of the condition of the people. In
purely party politics, Commissioner Kerr would
probably not have been a success. This he, indeed,
well knew, he often having remarked, " You and
I are no good at party politics, Pitt. Lord Mel-
bourne once, when pressed to give an appointment
to a man because he was a good fellow, ' and
always votes with us when he thinks we are right,'

said, * D him, what's the good of that ? I want

a fellow who will support me when I am WRONG.

The Commissioner's intense love of justice would
have led him, had he been returned to the House of
Commons, to have habitually committed the unpar-
donable political sin of always thinking for himself,
and sometimes voting as dictated by his conscience,
not his party. Guided by this he would, like the
writer, have found himself unable to follow his party
in 1885, since during the contest at the Kilmarnock
Boroughs in 1880 he had expressed himself in terms
almost absolutely identical with those employed
five years later by the present writer, and to them
the Commissioner would doubtless have adhered.
To use his own words, he had said : "I am
opposed to what the Irish call Home Rule —
a Parliament in Dublin. ... I would extend to
Irishmen every possible institution for local self-
government that we have in England. But I will
not consent to break up the nation by having a
Parliament in Dublin." Although, too, he could
claim to be " born a Liberal, bred a Liberal, and a
Liberal all my life," he was, on the one hand, opposed
to the Permissive Bill, and, on the other, a churchman

276

Views Decided and Independent

who claimed for the Church to be disestablished, and
thus freed from secular control. Commissioner
Kerr's political career, had he succeeded in enter-
ing Parliament, would, probably, have been like the
writer's, dismal and disastrous, seeing the almost
absolute identity of his views with the latter's, and
the tenacity with which he ever clung to what he
deemed to be justice and right. But in the words of
Lord Melbourne, which he was so fond of quoting,
with only a little alteration, it may be asked of such
views, " What's the good of them ? We want men
who will support us when we are WRONG."

277

CHAPTER IX.

THE PART IN PUBLIC LIFE TAKEN BY THE COMMISSIONER
AS CHAIRMAN OF A METROPOLITAN BOARD OF
GUARDIANS.

THE Commissioner, off the Bench and in public
life, endeavoured to continue the work of
" cleansing Augean stables " which was his mission in
his Court. With this view he endeavoured on no less
than half a dozen occasions to obtain a seat in the
House of Commons. He afterwards, in order to
effect a much-needed improvement, and to remedy the
scandalous state of affairs which had grown into
existence at the St. Pancras Board of Guardians, came
forwrard and allowed himself, as a magistrate, and thus
an ex qfficio Guardian, to be elected chairman of that
body. The Commissioner's endeavours to obtain a
seat in Parliament, and his action in bringing about a
reform at the St. Pancras Board of Guardians, are
the two best-known acts of his public life off the
Bench.

After his defeat in the Kilmarnock Boroughs in
1880 had brought the Commissioner's political aspira-
tions to an end, he determined to devote some of his
energies to the public service in municipal matters,

278

Abuses Existing in St. Pancras

and to set to work to cleanse an Augean stable which
he found near to his own door.

He resided in Chester Terrace, Regent's Park. A
sad state of affairs at this time existed at the Board of
Guardians for St. Pancras with regard to everything
under the control of that body. Abuses of every kind
were rife. The workhouse, for instance, built to
accommodate about 1,450, was made to do duty for
2,000 paupers, its scant accommodation being supple-
mented by a profusion in granting " outdoor relief"
on a lavish scale, with all the consequent abuses which
experience has shown to be attendant upon the
system. The course thus taken with regard to the
workhouse was supposed to be that of " Economy,"
and an " economical," or, to say the truth, a niggardly
and cheese-paring policy of stinginess, miscalled
" Economy," but really most extravagant, dictated the
policy of the Board of Guardians as to the pauper
schools, the infirmary, and every other institution over
which its control extended.

The Commissioner was one of the earliest to adopt
the now popular view that women members can effect
much good on a Board of Guardians or in the
management of schools. Accordingly, in 1881, he
allied himself with a party of lady reformers in the
parish of St. Pancras.

Foremost amongst those taking part in the " great
stir" made in St. Pancras on the election of a new
Board of Guardians in 1881 were Commissioner Kerr
and a daughter of that friend of his youth, the
philanthropist and reformer, Matthew Davenport- Hill.
Their efforts were so far successful that at the election

279

Commissioner Kerr

in April, 1881, the new candidates obtained twelve
seats out of the eighteen to be filled, and only six
members of the former Board retained places on it.
Innumerable were the letters and messages of congra-
tulation received by the Commissioner. On the occa-
sion of the first meeting of the new Board it was
declared publicly that the great change which had
taken place in the Board's constitution was mainly due
to the Commissioner and accordingly, he being, as a
magistrate, already an ex qfficio member of the Board,
was on that occasion (April, 1881) elected its chair-
man with but one dissentient. In returning thanks
for his election the new Chairman for the moment
assumed that the new Board had knowledge of the
principles of Poor Law Administration, and added —

But with such knowledge it is only when principles come to be
applied in practice that difficulties of no simple character present
themselves. The solution of these difficulties is not facilitated by
the consideration of late years of the soundness of many of the rules
relating to the relief of the poor. The proper administration of
outdoor relief is one of many pressing questions. In some unions
it has been reduced to a minimum^ greatly, it is said, to the advan-
tage not only of the ratepayers but, really and morally, to the class
from whom those who require outdoor relief generally come.
Loans instead of doles have in many cases been found the most
beneficial mode of assisting struggling industry, and in preserving the
self-respect of the working classes while suffering under temporary
difficulty, whether arising from illness in the family or depression of
trade, or in consequence of loss of occupation. I venture to think
that the preservation of the home, with all its attractions, however
humble and unpretending, ought always to be in the consideration
of those charged with the administration of outdoor relief. The
mode in which outdoor relief — properly so-called — is given is also
of great importance, viz., whether it should be in money or kind.

280

Becomes Chairman of Board of Guardians

This has been a question of earnest consideration. In some
parishes relief in kind has been entirely abandoned, and it is, I think,
clear that if this giving of outdoor relief could be limited to persons
of really good character — that is to say if character can be added
as a test of respect — then the best form of relief would unquestionably
be money. As this point, and many others, must come before you
for discussion, pray understand that I am not at present offering any
opinion. I am only asking for the new Guardians that consideration
from their constituents to which I think the difficulties before them
fully entitle them. It is stated and believed that in the workhouse
itself there are paupers who ought not to be there at all ; that there
are some persons receiving outdoor relief who have no right or valid
claim to be on the rates. These reports, whether true or not, call
for the most vigilant examination of the respective lists of outdoor
poor by the respective committees entrusted with the enquiry. The
ratepayers are not only entitled to accurate information, but it is
obvious that to a certain extent this important question will at once
occupy the Board in a full committee. The question of the work-
house accommodation must to a great degree depend on what is
required to be provided for the permanent indoor poor. Incidental
to this question is another, viz., a careful consideration whether
some of the children, orphans for instance, might not be usefully
and beneficially boarded out, always, of course, under the superin-
tendence and inspection of the Guardians. Instead of being
retained either in the house or in the schools, many benevolent
ladies in different parts of the country are willing to undertake the
overlooking of children thus entrusted to families in their neighbour-
hood, and many respectable married couples either without children
or with few children find a child so boarded with them not only
a great help as regards the money payments, but often a great
comfort in their homes.

The result of the elections in St. Pancras in 1881
was not merely to place Mr. Commissioner Kerr in
the chair of the Board, it was the inauguration of a
new policy at this important Board. What followed
may be best shortly described in the words of the
Lady newspaper, in a notice of the work of Miss

281

Commissioner Kerr

Ledgett, contained in an article in that newspaper on
March 27, 1902 : —

A great stir was made for new blood on the Board of Guardians,
and among those freshly elected were some very earnest-minded
men and women who had no axes of their own to grind. The
names of Constance Marchioness of Lothian, Miss Florence M.
Davenport-Hill, Miss Lidgett, and Miss Andrews, now Mrs.
Heberden, were sufficient guarantees of disinterestedness, and the
new chairman was Mr. Commissioner Kerr. Everything had to be
recognised ; the long-talked-of new workhouse accommodation had
to be taken in hand, and the ladies, with their masculine colleagues,
felt their work discouraged by the fact that their elections might all
have to be fought over again at the end of the year, before they had
had time to prove the wisdom and reasonableness of any course
they might decide upon. It would have appeared so much more
economical to some ratepayers, especially to those who were owners
of tenement houses, if the large outdoor relief had been continued
instead of the " ratepayers' money being squandered " on new
buildings. But the requirements of the Local Government Board
were inexorable, and it was impossible to squeeze 2,000 inmates
decently into space that was only certified for 1,450. Sanitary and
other arrangements deemed adequate in 1809 were impossible
seventy years later.

The sort of Chairman of a public meeting that the
Commissioner made, and his methods of conducting
public business, were about this period admirably
described by a writer in the City Press, who had
obviously attended a public meeting over which the
Commissioner presided, in order to see how he did
his work as Chairman of a public body. This was
thus described in an article which appeared in the
City Press of November 18, 1882 : —

The Judge of the City of London Court makes an inimitable
chairman. Acting in that capacity at a School Board meeting in

282

Work as Chairman of Guardians

St. Pancras on Friday night, Mr. Kerr was seen at his best. Calling
upon Mrs. Westlake to speak last of the four candidates, the
Commissioner said he had had no hand in that ungallant arrange-
ment. The lady's three colleagues had entered into some sort of
unholy alliance, and were probably afraid that if Mrs. Westlake
spoke first she would so interest the audience as to take all the gilt
off the gingerbread. And when the " heckling " commenced, and
the solicitor's salary and commission were warmly assailed, what a
laugh the Judge caused by confessing that he saw a great many
legal bills, and they were not pleasant reading. His humorous
mode of declaring " who caught my eye first, as they say in the
House of Commons," when half a dozen gentlemen were on their
legs together, also did not a little to obviate confusion, as did also
" The gentleman with the hat first, if you please " ; " Now the gentle-
man without the hat " ; " This gentleman rather takes the precedence,
he's somewhat the taller of the two." " All experience is against
that," was the decision of the Judge, when a chorus of " No, No's "
told a "heckler" that he had wrongly interpreted a reply. And when
one insisted that he should be informed offhand why there were so
many juvenile thieves in a certain district, a roar went up as the
Commissioner, ruling the query not germane to the subject, replied
that the querist "had better go round to Scotland Yard." The
evidence of official documents, too, not meeting with favour, the
Commissioner was equal to the situation by observing that "I am
afraid St. Pancras does not think much of Blue Books." Altogether,
Mr. Kerr gave his judgments with a terse tact, just suited to an
assembly not by any means of one mind ; as was testified by "A
good job too ! " and loud cheers and counter cheers, following an
avowal that the Board have no power to establish free schools ; and
chairmen designate for the first time might learn a useful wrinkle
by studying the conduct of the Judge of the City of London Court
when acting as an unprofessional president.

Two years later, viz., in 1883, another election of
Guardians took place and the Commissioner was
again elected chairman of the new Board. But on
this occasion there was a real contest for the position.
On a division there were sixteen votes for the Com-
missioner and five votes for a local man who was his

283

Commissioner Kerr

opponent, thus leaving the Commissioner a majority
of eleven. The result of the election was thought to
be due on this occasion to the personal qualifications
of the Commissioner for the office rather than to the
predominance of the opinions of the reforming party
on the Board with whom he was in sympathy. For a
writer, obviously well acquainted with local politics at
the time, remarked in the City Press of May 2, 1883,
as follows : —

There is no doubt that the learned Commissioner forms an
admirable president, and possesses the rare gift of infusing interest
into the whole proceedings, whatever the nature of the assembly
may be ; and I can well imagine that some of the Guardians who
voted for the re-election of the vivacious and humorously dogmatic
Judge of the City of London Court did so under a feeling that it
was safer policy to make sure of flashes of sunshine, and electric
enliveners, combined with genius from the chair, than to elevate
some one who might, perhaps, prove equally dull as dignified, and
a pre-eminently respectable wet blanket.

While no memoirs of Commissioner Kerr could
claim to be complete if they omitted all mention of
the valuable local work done by him in assisting the
proper administration of the Poor Law in his neigh-
bourhood between 1881 and 1885, the parish politics
of Saint Pancras are not a subject which it would
interest the general reader to discuss in detail.
Suffice it to say that the party with which he sympa-
thised succeeded during his chairmanship in effecting
many reforms and in doing much good. Especial
praise for the share which they took in this work is
due to the ladies who, with the Commissioner,
interested themselves in bringing about a better state

284

St. Pancras Reforms during Chairmanship

of matters at the St. Pancras Board of Guardians and
in the Institutions — principally the workhouse, the
infirmary, and the schools — which were under its
immediate control. A new workhouse was erected,
and reforms and improvements effected at the infirmary
and at the schools. The comforts of the inmates at
the one, and the child-life and education at the other,
were seen into and made better, and much good
effected. Speaking generally, it may be said that the
reforms in Poor Law Administration spoken of in
Commissioner Kerr's inaugural address as Chairman
were all duly effected during his tenure of the chair of
the Board of Guardians.

In the interval between 1883-5 two misfortunes
overtook the late Commissioner. He himself had a
very severe and serious illness in the spring of 1884.
At one time this was, indeed, of so serious a character
that his many friends despaired of ever again seeing
him amongst them. Through this he was affection-
ately nursed by his devoted wife. Hardly had he
recovered from the visitation of sickness when a heavy
calamity indeed fell upon him by the sudden death
on May 19, 1884, of Mrs. Kerr, whose life, it can
hardly be doubted, had been shortened by the cares
and anxieties which she had undergone during her
husband's recent illness.

In this grief and affliction he received the sympathy
of his neighbours — friends and opponents alike. The
Board of Guardians unanimously passed a resolution
(May 29, 1884) recording their " sincere sorrow" at
"the great loss which has been sustained by him
through the death of his wife," and their trust, while

285

Commissioner Kerr

conveying to him this expression of the Board's
sympathy, that he might himself soon be able to
resume the duties of his important office.

At the election of Guardians in 1885 a considerable
change again took place in the constitution of the
St. Pancras Board of Guardians. At the first meeting
of the new Board it was moved and carried that its
chairman ought to be an elected and not an ex officio
Guardian. This was a not ungraceful way of con-
veying to the Commissioner that the new Board did
not desire his services as chairman. Accepting this,
the Commissioner did not allow himself to be again
put in nomination for the chairmanship.

For a few years afterwards he continued to some-
times attend the meetings of the Board of Guardians.
But the intervals at which he did so became naturally
longer and more irregular, till he at last, in 1899, left
Chester Terrace, where he had hitherto lived, and
took up his residence at a small house at North wood.
His medical advisers had told him that he ought to be
out of London as much as possible, and that it was
above all things, of great importance to him to always
sleep in the fresh air of the country.

Meanwhile his services in St. Pancras were not
forgotten. In October, 1888, he was formally invited
by its Executive to become the adopted candidate of
the Liberal party in the borough to represent it on
the County Council. But he with thanks declined
the honour thus offered for his acceptance.

286

CHAPTER X.

THE COMMISSIONER'S PRIVATE LIFE, INTERESTS, ASSOCIA-
TIONS AND PURSUITS.

\ 1L 7 HEN off the Bench and in private life, the
V V Commissioner still had some personal interests
closely connected with the law ; and not a few
altogether apart from it.

In connection with the profession, he took a great
interest in the establishment of " Courts of Concilia-
tion," as suggested by Lord Brougham. His intimacy
with that great man had, no doubt, been originally
brought about through his father-in-law, Charles
Knight, and had led to his first taking an interest in
one of the pet projects of the large-minded statesman.
Lord Brougham, on his part, had a high esteem for
Commissioner Kerr. On one occasion, indeed (June,
1863), Brougham, on introducing a Conciliation Bill
into the House of Lords, said (see Daily News
report), " In preparing this Bill I have had the
inestimable benefit of the assistance and advice of
my learned friend Mr. Kerr, the Judge of the Sheriffs
Court, where above 4,000 cases are tried in a year,
and where the want of conciliation proceedings is
constantly felt."

The non-professional reader will almost certainly

287

Commissioner Kerr

ask what Courts of Conciliation are ; while so little
interest is now taken in the subject that not a few
professional men will not improbably be obliged to
also make the same inquiry. Broadly, the scheme for
establishing " Courts of Conciliation " in which Lord
Brougham and his protege* I the Commissioner took
a common interest may be made plain to the most
ordinary mind by the following explanation. It at
present very often happens that after two contending
parties have both spent an enormous sum on the pre-
liminary stages of an action and in " briefing eminent
Counsel," when, too, their feelings towards each other
have grown embittered, the case comes on for trial,
that then, but not till then, and at the last moment,
the parties and their Counsel "see the Judge in his
private room," and his lordship's kindly offices and
sound advice bring about a complete and lasting
reconciliation between them. It now and again, too,
happens that a good-natured friend who wishes well
to both of them, dares to even take the risk of the
misfortune which too often befalls "those who in
quarrels interpose." He, by kindly intervention
at a sufficiently early stage, prevents the disputing
parties from ever rushing into litigation with one
another at all. " Courts of Conciliation " would
simply at an early stage do that which is now left
for the kind offices of a kind friend, or which the Judge
can at present only do at the last moment. Where
their intervention was sought, Courts of Concilia-
tion would, on their aid being invoked, at once

1 It will be recollected that Brougham had given Kerr a testimonial.
See ante, p. 95.

288

" Courts of Conciliation "

play the part of the kindly friend, by providing a
Judge who would be able to intervene without even
the danger of " a sanguinary nasal extremity " as his
sole reward for so doing ! The State would provide
him with appropriate " reward " for exerting his in-
fluence in the direction of peace at an early stage of
the quarrel. If it could not always protect him from
the anger and dissatisfaction of one or other of the
parties, or possibly even of both, it would at least, by
giving him an official and judicial position, secure him
effectually against suffering any personal violence or
even inconvenience, in consequence of his efforts
to bring about a pacification between them.

In the speech in the House of Lords in June, 1863,
in which he had mentioned Kerr by name, Lord
Brougham had said : —

In discharging the order for second reading of the Bill and pre-
senting another slightly different with the same object, I wish it to
be understood that my anxiety to stop useless litigation is by no
means an attack on the profession of which, for above sixty years, I
have been a member. Against lawyers, I am far from quoting the
divine saying that they load men with burdens grievous to be borne,
which they themselves touch not with one of their fingers. Of
neither branch of the profession do I so speak. Nor do I say that
they alone are to blame for needless litigation. Their clients must
share the blame with them. But that such litigation is a great evil
to the parties and to the community is plain, and this evil I am
anxious by all means to remedy. When bringing in the first County
Courts Bill in the other House, I stated, with Sir J. Scarlett's con-
currence, that at the last assizes for Lancaster, including of course
Liverpool and Manchester, the fifty verdicts returned were for sums
averaging less than ,£14. Though five or six actions were to try
rights, yet forty out of the fifty were for debt and damages. Although
the sum recovered was under ^£700, the cost to the parties was above

289 U

Commissioner Kerr

.£5,000. The establishment of County Courts and the Act recently
passed on bills, notes and bonds, has considerably reduced the
amount of litigation in the Superior Courts. In Scotland, from
which both measures were borrowed, 22,000 suits yearly are brought
in the local courts ; in this country above 400,000, for sums exceeding
^2, 000,000. The benefits derived from these courts are unspeak-
able, but they have much litigation which either in the inception of
suits or their needless continuance is a grievous matter, and can be
effectually remedied. It requires no argument to prove the inevit-
able tendency of parties going before a person wholly impartial and
well qualified to advise. In the bulk of cases his advice will be
followed, and hopeless actions or groundless defences will be stopped.
Experience has abundantly shown that such is the actual result of
Conciliation Courts. Whenever they have been fairly tried, they
have greatly lessened the amount of litigation. In France, where
the system was introduced from Denmark, though with important
alterations, the greater part of the suits brought have been settled
without trial. In Switzerland, a large proportion. In Denmark,
where this law has existed for above a century, out of 30,000 suits
commenced 3,000 only came to trial, the other 27,000 being either
settled under the Judge's advice, or dropped before trial. There is
a code of procedure, most ably framed by Sir B. Pine, Governor of
our islands of St. Kitts and Auguilla, and he has introduced Con-
ciliation Courts with the entire assent of his law officers, who have
no doubts of its success. He has taken it from the neighbouring
island of St. Thomas, the great emporium of trade with the Spanish
main. In that island, as in Santa Cruz, he learnt from the Governor
(himself, like Sir B. Pine, a lawyer), that the effect of the Courts of
Conciliation has been almost to extinguish hostile litigation. Can
it be wondered at that one should feel most desirous to introduce
this institution, of which the effect is to substitute the incalculable
blessing of peace for angry contention? If I shall succeed in
obtaining this end, I shall believe that, long as my life has been, I
have not lived in vain. I present this Bill for establishing Courts of
Conciliation. The chief change made in the form regards the mode
of paying the Judge.

In the December following, the Globe newspaper
contained an article making reference to Lord

290

" Courts of Conciliation '!

Brougham's then recent County Court Legislation,
and somehow confusing his later attempts to esta-
blish "Courts of Conciliation" with this. On this,
the Commissioner addressed to it the following letter,
which duly appeared on the same evening in its
columns on December 4, 1863 :—

SIR, — I have only to-day seen the article in your impression of
Saturday last, in which you express a wish to see those restrictions
removed which enable a certain class of attorneys to bring trifling
actions in the Superior Courts, and call upon Lord Brougham to
perfect his County Court work by legislation.

I believe no one is more anxious than his lordship to do so, but
those only who have had to contend with the opposition which is
offered to every project of law reform, can appreciate the diffi-
culties which have to be encountered and overcome. The legis-
lation which you desire has, however, no relation whatever to Lord
Brougham's scheme for establishing Courts of Conciliation. Such
tribunals will never be sought by the attorneys, who resort to the
Superior Courts for the sake of costs. They are intended for a very
different class of suitors — for those in short who, knowing the mis-
chiefs arising from litigation, desire to save those with whom they
have to contend, as well as themselves, from its consequences, who
would endeavour, even in the irritating affairs of everyday life, to
remember that "Blessed are the peace-makers." I do not write,
however, to argue this matter in your columns, but simply to correct
a misapprehension into which you have fallen, in the article I have
alluded to. You there say that " the Courts of Conciliation " have
in fact been found little better than a failure. The contrary is, I
think, the fact. In Denmark, out of 30,000 suits, 3,000 only, or one-
tenth, get beyond the stage of conciliation. In Santa Cruz, hostile
litigation has been extinguished, and this has led to the recent
establishment of conciliation, as a feature of legal procedure, by the
legislature of St. Kitts, the effect of which we do not yet know. A
recent return of the tribunal of the Commerce of Paris also shows
that, out of 4,000 contested suits, upwards of one-fourth were settled
in chambre de conciliation, and, had I time to quote other statistical
returns, I do not doubt that I could accumulate proofs in support

291

Commissioner Kerr

of my assertion. But you, Sir, cannot surely be blind to what is
reported, in almost every daily paper, of " a juror being withdrawn "
in such a case ; " his lordship suggesting terms " in another ; the
parties " referring what is to be done to a gentleman of the Bar " in
a third, and so on, in all of which the costs of litigation might have
been saved and, what is infinitely of greater moment, the passions of
parties not left embittered, had they resorted, in the first instance,
to a Judge specially charged to arrange their differences, if that were
possible. I shall not occupy your valuable space with any com-
ments on the absolutely voluntary nature of the Bill introduced
last session. I trust that this feature of the measure will disarm
all opposition, and especially that the press, on which much depends,
and to which the public interest ought ever to be the first considera-
tion, will urge a trial of Lord Brougham's project. He has lived to
see all the law reforms he proposed in 1826 adopted, with the excep-
tion of Conciliation Courts. It is to be hoped that next Session
will see this last proposal, one however, which he has unceasingly
urged throughout his long and useful life, accepted by the legislature.
I am, Sir, your obedient servant,

R. MALCOLM KERR.
Temple, December 4th.

That lawyers should, as a body, hate any scheme
for establishing " Courts of Conciliation " such as that
propounded by Lord Brougham, with the aid of his
disciple Commissioner Kerr, is not to be wondered
at. Its adoption would "ruin the profession," since
it would prevent enormous sums being perpetually
wasted on legal proceedings, the result of which
necessarily mortifies the defeated party, and is rarely
entirely satisfactory to even the successful one.

Successive "Governments," too, love such a scheme
but little. The State would have to provide and pay
the Judges of the Courts of Conciliation. No doubt
it already pays the Judges who now dispense " Justice
according to Law " in this country. But its outlay in

292

" Courts of Conciliation "

so doing is at present largely repaid by the fees levied
from suitors, and in some directions even a profit is
actually derived from the sale of justice. For we
English are less enlightened now in this matter than
our own ancestors were seven centuries ago. To-day
the sovereign people, contrary to the provisions of
Magna Charta, does daily " sell justice " ; and to those
who are not ready to buy it at the price demanded
altogether denies "doing it," save when it inflicts
criminal punishment.

Parliament has, of late years, not hesitated to find
the solution for every evil apart from Imperial matters
for which it has deigned to seek a remedy by thrusting
the duty of dealing with it upon the Judges of
County Courts. The Judges of the High Court
might well surely be now entrusted with the making
of quite a new experiment, and charged with the duty
of acting without remuneration as Judges of Courts of
Conciliation. After a short time, few actions would
come to be entered for trial either at any of the great
centres of country districts, or at our commercial
centres. The country squires and the business men
in them would soon come to know that within a short
time, there would be in their neighbourhood a Judge
of the High Court to whom they might privately and
informally refer all their disputes. But the dream of
Commissioner Kerr, the last Judge of the Sheriffs
Court of London, that such a state of things can ever
be brought about in this country are, it is feared, as
unlikely to be ever realised as that of his distinguished
predecessor, Sir Thomas More, who framed the
romantic idea of a Utopia itself!

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Commissioner Kerr

" Free Justice " the Commissioner also favoured.1
He thought, too, that there ought to be at least a
great reduction in the fees levied in Courts of Justice,
and especially of those extracted in the "poor man's
Court " — the County Court — where suppliants for
justice are taxed far more heavily even than they are
in the High Court.2 All these views are either
actually corollaries of, or at least closely connected
with, the ideas strongly entertained by him as to the
necessity for the establishment of " Courts of Con-
ciliation " in this country.

What has been said on these matters sheds a
considerable light upon the Commissioner's well-
known views as to lawyers and their costs, and the
policy and the justice of a considerable reduction
being made in the fees exacted in Courts of Law.
Whatever may be said as to "municipal trading" in
general, it can hardly be denied that for either a
municipality, or still less for Goverment, to traffic in
the sale of public justice, in order to derive a profit
from the quarrels of those whom they govern, is little
to the credit of the civilisation of the twentieth
century.

Another matter connected with the law that stood
prominent in the Commissioner's personal interests
was his membership of Clifford's Inn, as it will be
called in this chapter, or, in exact and precise legal
language, " The Honourable Society of Clifford's

1 As to this, see supra, p. 226.

2 For once, the Law Society and the Commissioner were at one.
A reduced scale of County Court fees has been suggested by the
former.

294

Connection with Clifford's Inn

Inn." This closely allied itself with his antiquarian
tastes. The non-legal reader will probably even now
inquire, "What was Clifford's Inn?" It will doubt-
less not be very many years before a legal reader also
will himself make a similar inquiry. Clifford's Inn has
one of the two last subsisting voluntary legal societies
of the " Inns of Chancery " which once existed. Just
as Serjeants' Inn was long the home or "Inn" of
the Serjeants, and the Inns of Court are still the
habitations of Barristers, the dwellings of all these
three distinct degrees in the law, viz., Serjeants,
Barristers, and Solicitors were their " Inns." Lawyers
of each of these classes formed a series of "clubs," as we
should now call them. Each of these clubs occupied
some large and appropriate house. Familiar ex-
amples of this are furnished by one Society having
taken up its abode in the mansion of the Earls of
Lincoln, and having, from doing so, acquired the
name of the Honourable Society of Lincoln's Inn ;
while another similar Society was that of " Gray's
Inn," the latter name being derived from the Society
occupying the town house of the Earl de Grey.

The attorneys who framed the writs called
" Original Writs," by which every action was in old
days commenced, formed themselves into Societies like
their professional superiors, and each of these Societies
also took up its abode in some large house. One
such Society established itself in the House of the
Earls of Clifford, and from this came to be called
" The Honourable Society of Clifford's Inn." This
Society, in a degenerated form, remained till within
a few years of the close of the nineteenth century.

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Commissioner Kerr

Till 1893, ft st^ continued unbroken the existence
which it had maintained for centuries previously. The
Constitution of this Society was peculiar to itself. It
also possessed at least one quaint ceremony which
still survived in its entirety till the dissolution of the
Society. As to its constitution, the " Inn " had
originally contained sufficient chambers to accommo-
date seventeen members. Of these, one was President
for the year, annually chosen from among the
" Rules " ; twelve were " Rules," and four constituted
the so-called " Kentish Mess," or residents in the
Inn. Only four of the Kentish Mess could have
chambers in the Inn, but that Mess itself might con-
tain as many more members as were from time to
time elected to the Inn. On the death of a " Rule,"
a Member of the Kentish Mess was elected to
succeed him in his office of " Rule " ; and one of
the " Rules " nominated a new member of the
Kentish Mess. The " Rules " arranged a rotation
amongst themselves as to the order in which they
should respectively exercise this right of nomination.
An old copy, if not the original, of the ancient
regulations or bye-laws of the Inn was purchased by
the late Commissioner, and was in his possession at
the time of his death in November, 1902. His
son gave this to the Solicitor to the Society, while
the present writer is indebted to him for a copy of
a translation of them made previously to their being
parted with, which is printed as Appendix II. to
this work.

For some centuries the Inns of Chancery were, as the
very workshops of the Law, the nurseries of the Inns of

296

History of Clifford's Inn

Court. The latter were entirely recruited, from time
to time, by students brought from an Inn of Chancery
into them. Every student for the Bar, indeed, used
to be obliged to pass through an Inn of Chancery
before entering an Inn of Court. He was nevertheless
not bound to enter at the particular Inn of Court to
which his Inn of Chancery was attached. The prac-
tice of passing through an Inn of Chancery, before
entering an Inn of Court, gradually grew into disuse,
during and after the Civil Wars of the Rebellion.
Sir Symond D'Gives, writing in his diary, gives
an interesting account of how, being a member of
" New Inn," he took part at a " moot " in his Inn of
Chancery, and was promoted to an Inn of Court by
the reader sent to it by the Middle Temple, to which
it was attached. For the manner in which the Inns
of Court obtained their recruits was by periodically
sending an " Utter Barrister " of some standing
to " read abroad" at the Inns of Chancery belonging
to them. Clifford's Inn was formerly attached to the
Inner Temple, and it is within living memory how
a reader used to be at intervals sent by the latter Inn
to the former; but no one recollects a "Reading"
having ever taken place. Whenever, within memory,
a reader arrived, and had announced his mission,
he used to be invited to sit down and take a
glass of wine. This he used to do so willingly,
that it is not within any one's recollection that he ever
was known to get up again, and to proceed with
his "Reading."

Clifford's Inn, which has been before mentioned
as having survived till its Society was broken up,

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Commissioner Kerr

used to fill with wonder and astonishment visitors
to it who had not previously dined there, by the
grace after dinner. This was offered by a ceremony
performed in entire silence. The Commissioner's
son, R. M. N. Kerr, Esq., Barrister-at-Law, who,
like his father, was a " Rule" of the Inn after having
been previously for some years a member of its
Kentish Mess, has kindly supplied the author with
the following account of this :—

THE GRACE AT CLIFFORD'S INN.

After dinner, when the table-cloths had been removed, and
before the wine and dessert was placed on the tables, a loaf, made in
the form of a cross of four small loaves, was handed to the senior
member of the Kentish Mess, who presided as Chairman at that
table. He then, with a small hammer, knocked once on the table,
and every one, including the Principal and Rules at the other
table, stood up. Then, with his right hand, he raised the loaf up
above his head to the full extent of his arm, and brought it
down with a thump on the table. This he did three times, and
then slid it down the full length of the table to the Vice-
President, who arrested its career, and handed it to a servant in
attendance.

It is generally explained that the whole of this
curious ceremony was symbolical, and of origin dating
from the days when all lawyers were either actually
ecclesiastics or at least connected in some way with
the Church. The knock given by the senior
member of the Kentish Mess at the commencement
was merely to attract attention, and had no symbolic
meaning. But the bread, made in the form of a
loaf with four small arms, symbolised the Bread
of Life, centred on the Gospels of the four Evan-

298

Clifford's Inn Grace

gelists. The three blows upon the table were an in-
vocation of the Trinity. The bread being slid
down the table symbolised that this Bread of the
Gospel was spread over the world. Finally, the
Bread was removed to be given to the poor, and
reminds us of Charity.

Curiously enough three raps on a table before
grace are also given at the dinners in Hall in the
Temple, and it is still a tradition in the dwelling
of the Templars that the broken meat after dinner is
to be given to the poor. Some remnants of this
latter custom could still be traced at the Middle
Temple not more than a quarter of a century
ago.

Great was the pleasure of the Commissioner at
finding a congenial spirit who could appreciate a
dinner at Clifford's Inn with its accompaniment of a
quaint, old-world Grace afterwards. To such an one,
an invitation to dine as his guest there was sure
to be forthcoming. Upon one occasion, the famous
author of Vanity Pair was invited to dine at
Clifford's Inn. He was a student of the Middle
Temple, and, as is well known, was much interested
in legal matters. But the dinner was not a success.
Thackeray, for some reason, was far from seeming to
enjoy it, after being served with the first course and laid
down his spoon, folded his hands, and stared gloomily
and abstractedly about him, seemingly ill at ease. At
the first opportunity he moodily left the room. After-
wards the explanation was imparted to a select few.
It will be recollected that the immortal classic just
named contains a vivid description of Rawdon

299

Commissioner Kerr

Crawley's being arrested, and taken to a sponging
house in Cursitor Street. That incident is founded
on the fact that such a calamity had actually befallen
a friend of his with whom the great novelist had been
intimately connected in some of the numerous literary
ventures in which he had embarked in early life, and
by which he had himself lost the little patrimony
which he originally possessed. It is sometimes
erroneously said that it was the great classic novelist
himself who had been arrested. This, however, is
altogether incorrect. For, many as were his literary
misfortunes, Thackeray was never himself at any time
arrested for debt. But he was indignant on behalf
of the friend, whose misfortunes had served as a
model for the description of Rawdon Crawley's
adventures at the sponging house. And it so
happened that the writ on which Thackeray's friend
had been arrested, had, unluckily, been issued
by the president of the evening on the occasion
when the great writer was invited to dine at
Clifford's Inn as a guest — probably the guest of
the evening.

The writer's own experiences of dining at Clifford's
Inn as the Commissioner's guest are happily less
unpleasant. But there is a memory attached to them
also. The place contained many most respectable
attorneys of " the good old school " — men each of
whom was clad in a black coat of broadcloth, with his
gold eyeglass suspended round his neck. One of
these, so soon as the quaint old ceremony of grace
had been gone through, produced a cigar-case, and
with an old-world courtesy and politeness, before

300

Ready Repartees

taking a cigar himself, offered one to the Commissioner.
Now the latter hated smoking, which he considered
to be a " dirty, disgusting habit." To the polite offer
made by the old attorney so graciously, he accordingly
replied brusquely, " Don't smoke ; it's not one of my
vices." Retorted the old courtier, unruffled, and still
speaking in terms of the sweetest politeness, " Very
sorry, Commissioner, but I'm so glad to find that I
discovered one you don't possess." Rejoined the
Commissioner gruffly, " Knew directly I had said it
you'd quote too." But he bore no malice, for, as has
already been told, he loved a good joke or a smart
repartee even when it had been made at his own
expense. To sometimes have the laugh turned
against him by the appropriate finishing of a quota-
tion begun by himself, was a fate not singular to
the Commissioner. For it is recorded that on one
occasion Bishop Wilberforce, having elected to walk,
rather than ride, back to a country house at which
he was staying, during a shower of rain was
overtaken by Lord Palmerston, who had elected
to go home in the family brougham, and look-
ing triumphantly out of the window, exclaimed,
" How blest is he who ne'er consents, by ill-advice to
walk" only to receive the retort, " Nor stands in
sinners' ways, nor sits, where men profanely talk."
Again it is said that Egan, the famous Irish Barris-
ter and wit, one day meeting Curran, alike a brother
wit and a brother Barrister, and observing a small
creature whose name and nature may be guessed,
crawling on the latter's bands, remarked, "'Cujum
tecus, an Mcelibcei ? " only to receive the immediate

301

Commissioner Kerr

reply " Non, verum Egonis ; nuper mihi tradidit
Ego*."*

The repartee to him mentioned above recalls
another joke made at the Commissioner's expense at
the Guildhall Luncheon Club. One day he had, in
a moment of abstracted forgetfulness, left all his money
on the table in the Judge's room at the Court. Find-
ing, when asked to pay for his lunch, that he had not
any money with him, he said to an Alderman near,
" Lend me half a crown." Replied the witty Alder-
man, " I would with great pleasure, but I heard a
Judge, for whose opinion I have the greatest respect,
say the other day, ' Never give credit — credit is the
curse of this country ; ' I at once determined to follow
this good advice, and have ever since. So I cannot
oblige you."

To return to Clifford's Inn. The ancient society
of that Inn used to dine together on three days-
Mondays, Wednesdays, and Fridays — in each of the
weeks that followed the four legal terms in the year,
viz., Hilary Term (in January), Easter Term, Trinity
Term, and Michaelmas Term, kept at the Inns
of Court. These dinners were given up about the
year 1893, and the movable property of the Inn
was, in that year, distributed amongst the members of

1 For the benefit of those whose Latin has, like the writer's,
"grown rusty," the late Lord Bowen's elegant translation is
appended : —

" Whose is the flock, Dametas ?

Are yon Moelibeus's sheep ? "
" Nay — they are Agon's, and

Entrusts them now to my keep."
302

Relics of Clifford's Inn

the Inn. The old oak table, at which Sir Matthew
Hale and the Judges sat at Clifford's Inn as a
" Court of Judicature" under a special Act of Parlia-
ment (19 Car. II. c. 2) from 1668-72 to decide the
numerous disputes as to lights, &c., which arose
on the rebuilding of the City, after the Great Fire
of 1666, and made what were called the " Fire
Decrees," fell to the lot of the Commissioner on the
distribution. It was presented by him to the Guild-
hall Library towards the end of 1893. The Library
Committee of the Corporation, on accepting it
(as recorded in a letter written by their direction on
December 5, 1893), ordered a brass plate to be placed
upon it with a suitable inscription. The gift would
obviously have been very appropriate in any case, but
it was rendered the more so by the fact that the
portraits of fourteen of the Judges who sat at it when
the Fire Decrees were made had been painted, by
order of the Court of Aldermen, by one Michael
Wright, and are also still in the possession of the
Corporation of London. About the same time, viz.,
November, 1893, the Commissioner also presented
to the Corporation some old heraldic stained glass
from Clifford's Inn, which had likewise fallen to
his lot. On this were recorded the arms of
certain former members of that Inn. The Law
and City Courts Committee of the Corporation
not only accepted this glass with thanks, but
very gracefully caused it to be hung in the bay-
window of the Judge's private room at the City of
London Court. This bay-window contains four
panels. Those on the extreme left and on the

303

Commissioner Kerr

extreme right on either side are both "splayed"
towards two centre panels, set in line with one
another. The panel on the extreme left of a person
looking from the interior of the room at the window
contains the well-known arms of Edward the Con-
fessor, with their familiar " azure" (or blue) "field."
Immediately opposite these, in the panel on the
extreme right-hand side of the window, is a bearing
unique in English heraldry. The arms of William
Skreen have been placed here. He was an old lawyer
belonging to Clifford's Inn, whom we learn from the
Harleian MS. to have flourished in the reigns of
Richard II. and his two immediate successors. These
arms, to use more technical language, are an azure
" field " divided by three golden (" or ") bands, with the
spaces between filled with eight keys : there being in
the top one a row of three keys ; the next two spaces
each containing a row of two keys ; while the bottom
one is filled by a single key. No other bearing of
eight keys exists, or was ever known, in this country.1
The bay-window's two centre panels are filled thus :
That on the left by the arms (some wrens) of Sir
Christopher Wray, once Lord Chief Justice of the
King's Bench, who had sprung from Clifford's Inn ;
that on the right by the bearings of Sir Robert
Heath, a former member of Clifford's Inn, who
became Lord Chief Justice of the Court of Common

1 When we find a family of Skrine, a name pronounced Screen,
resident at Claverton Court, near Bath, and recollect that " Clavis "
is the Latin for " key," some connection with the old lawyer
of Richard II. 's day might naturally be suspected. But none
exists.

304

Relics of Clifford's Inn

Pleas. On the glass at the bottom of the window is
inscribed : —

" This heraldic stained Glass

was presented in the year 1893 by

ROBERT MALCOLM KERR, Esq., LL.D., Judge of the

City of London Court."

There is room for the addition of a few more words.
Were it added, " By whom it was obtained from
Clifford's Inn," this further line would perpetuate the
memory of the City's historical connection with Clif-
ford's Inn. Probably it did not do this owing to the
Commissioner not having remembered to mention the
fact, nor bethought him how appropriate such an
addition to the inscription would have been.

The name of Commissioner Kerr himself will,
however, probably always be connected with the dis-
solution of the last surviving of the Inns of Chancery.
It will remain historically connected with that event
by the suitable inscription on the oak table in the
Guildhall Library. It is enshrined in the Law
Reports in connection with the Inn by the case
of Smith v. Kerr,1 the case which established, in
an action brought against the Commissioner, as the
Senior " Rule " of Clifford's Inn, that its members
could not divide the property of the Inn amongst
themselves, as had previously been done at Serjeants'
Inn, and at all the other Inns of Chancery, except
two, but that the public were entitled to have such
property devoted to some purpose of legal educa-
tion. This case in fact decided that the Societies

1 [1900] 2 Ch. 511 \ on Appeal 1902 i Ch. 774.

305 X

Commissioner Kerr

of the old Inns of Chancery held their properties
for public purposes — technically were a ''charity."
This decision certainly came a little late in the day,
seeing that it was not given till all the old Inns of
Chancery save two had been already broken up ;
that Serjeants' Inn had a generation ago undergone
the same fate ; and that in all these cases the
whole property of each Society had been divided
by its members amongst themselves without question
from any one. The Commissioner thought that
the members of Clifford's Inn ought to have been
allowed to do the same. He sarcastically said that it
was a unique instance of the honesty of lawyers that
the deed, several centuries old, on the words of which
it was decided that a " charity " existed, and the
possible effect of which had long been known, had
not been burnt long ago. With the dissolution of
the last-surviving of the old Inns of Chancery the
Commissioner's name long will remain historically
connected, alike by the law case already mentioned
and also by the inscription on the oak table in the
Guildhall Library.

Besides being a member of Clifford's Inn, the Com-
missioner also was an active and energetic member of
another semi-public society connected not with the law
but with the City. In a pungent, but not unkindly,
notice of him, which appeared in Vanity Fair,
together with the excellent cartoon of him containing
the likeness in colours, reproduced as the frontispiece
to this book, it was said, amongst other things, that he
had "been a Master of the Tallow Chandlers Company
without softening the asperities of his character."

306

St. Mary's, Munster Square

The property of the Tallow Chandlers Company
had been somewhat neglected when he joined. It
was at least in some part due to his care as to its
subsequent management that it was so greatly
improved in value that the Company is now a
wealthy one, notwithstanding that it has recently
expended a very considerable sum of money in
restoring and re-decorating its ancient Hall on
Dowgate Hill.

Passing from these semi-public institutions with
which the Commissioner was closely identified, and in
which he also took a very great interest, a matter of
a strictly private matter may now be referred to — the
Church of St. Mary Magdalen, Munster Square.
This church will be recollected to have had as its
vicar one of the earliest pioneers of the " High
Church " movement in London. The Commissioner,
although a Scotchman, had no Presbyterian leanings.
Indeed, it is said that on one occasion, when he was
sitting at the Old Bailey, it chanced that he had to
try a young fellow for a robbery committed on a
Sunday upon his employer while the family were
absent at Church. It transpired during the case that
the master was a strict " Sabbatarian," who would
not permit the lad to go out for a walk or indulge
in any other reasonable recreation, on " the Lord's
day." The Commissioner soundly lectured both
employer and employed on this score, and pointed
out to them that the robbery would probably never
have taken place if the day had been allowed to be
occupied in a reasonable manner.

A member of the congregation at St. Mary's writes

307

Commissioner Kerr

as follows as regards the Commissioner's connection
with that Church :—

February 10, 1903.

In a small pamphlet called Edward Stuarfs Life Work, pub-
lished in 1877, at the time of his death, at a shop in Osnaburg Street,
I think, will be found references to the Commissioner's charity and
help to St. Mary Magdalen's, Munster Square (Rev. Edward Stuart
was the first vicar, from 1852 to February, 1877). I know the
Commissioner was very active and zealous, and a liberal giver.
Rev. Frederick Ponsonby, the second vicar, was a friend of mine,
and mentioned this.

Rev. Vincent Borradaile, now vicar of St. James, Hampstead
Road, was one of the priests at St. Mary Magdalen's in the Com-
missioner's time, and he could probably help you with information
as to this side of Mr. Kerr's character if you wrote to him
mentioning my name.

Often I have seen on a Sunday morning three grand old men
worshipping at St. Mary Magdalen's, viz., Lord Salisbury, Mr.
Gladstone, and the Commissioner.

The clergyman to whom the above letter referred,
on being applied to, at once most courteously and
kindly replied in the following very interesting letter :

ST. JAMES'S VICARAGE, 37A, AMPTHILL SQUARE, N.W.

February 16, 1903.

DEAR SIR, — I am afraid I cannot supply you with many particulars
concerning our late friend, Commissioner Kerr. I remember him well
as a most regular attendant every Sunday morning. He was a great
friend both of Mr. Ponsonby and Mr. Stuart, the founder of the church.
It was mainly owing to him that a Parochial Council was formed,
elected by the communicants of the congregation. He always felt
very strongly that the whole congregation, and not the vicar, should
be responsible for the finances of the church, and that there should
be a representative body with whom the vicar could take council on
any matters relating to the wellbeing of the parish.

He always maintained that the ritual of St. Mary Magdalen's

308

Religious Views

Church was the nearest approach to perfection in rendering the
service of the Book of Common Prayer.

I do not know whether you are aware that he published a book for
use at Holy Communion, entitled, A Companion to the Altar, by a
Layman. It was, as stated therein, " compiled for the use of a few
members of the congregation worshipping at the Church of St. Mary
Magdalen, Munster Square." It contains the office of Holy Com-
munion, Introits, and Post-Communion for the year, and special
services for the burial of the dead, and commemoration of the Faith-
ful Departed. It is published by William Clowes and Sons, 13,
Charing Cross.

After the death of Rev. E. Stuart, the founder of the Church, Mr.
Kerr took steps to provide for an annual Requiem Service.

If I can give you any further information I shall be very glad to
do so.

Yours faithfully,

VINCENT G. BORRADAILE.

Some ten years after her death (which will be recol-
lected to have occurred on May 19, 1884), the Commis-
sioner erected in St. Mary's, Munster Square, a hand-
some stained-glass window to the memory of his wife.
In the issue of the Citizen newspaper (November 28,
1896) in which this fact is named, we are reminded
that this Church was itself erected by the Alderson
family, in memory of the late Baron Alderson (a well-
known and very prominent High Churchman in his
day), the father of the late Lady Salisbury ; that
it long has been " one of the highest in ritual in
London " ; and the Commissioner is referred to as " a
leading Pillar of that famous Church." But greatly as
he valued elaborate ritual as symbolical of the highest
teachings of the Christian religion, the Commissioner
prized it only for this, and, as might have been ex-
pected from a mind such as his, took a broad grasp
of everything ecclesiastical, and was no mere form-

309

Commissioner Kerr

worshipper. He held the highly practical view, that
the discoveries of modern science ought not to be
ignored or disregarded, but accepted as often corro-
borating earlier teaching, which the Church was
unable to fully explain. For instance, he thought
that by aid of the Rontgen rays it was possible for
the human intellect to form a more accurate idea
than it ever before could do of the nature of the
body after the Resurrection, and of that great mystery
itself. The recent observation of astronomy, showing
that the disappearance of a star in a distant constel-
lation was due to its sudden collision with another
planet, and instant destruction thereupon, and the
description of what must have occurred, given by a
distinguished German astronomer (himself a non-
believer), in words curiously like those in which the
end of this world is described in the New Testament,
would, too, have afforded the Commissioner an
example of his theory that modern science in many
matters corroborates rather than destroys the testi-
mony of Scripture. Viewing it in this spirit, he had
none of that morbid horror of cremation which is
felt by smaller minds ; and regarded what became
of this mortal case or shell after death as a matter
of utter indifference from a religious aspect. Accord-
ingly, he at one time contemplated cremation for him-
self on sanitary grounds, though he ultimately left no
directions on the subject.

But enough has been now said in this connection.
For the private religious opinions of even one who
is now deceased are hardly matters to be discussed
publicly in much detail. Hardly less sacred than his

310

Literary and other Friendships

religious views are the confidences between a dead man
and his friends — perhaps they are, in the opinion of
some, even more sacred.

The notice of the late Commissioner in Vanity Fair
which has been already referred to I closed with the
remark, " yet he has friends." The comment on this,
truly made by one of those who knew him well, was
that it should have been said that " he has troops of
friends."

Closely connected with literature as he in many
ways was, amongst the many friendships which the
Commissioner possessed literary friendships were
some of the most pleasant to him, and the pleasure
must have been mutually shared both by those who
were honoured with them as well as by himself.
Many a valuable literary hint has he given to friends
whom he thought able to appreciate it. Perhaps one
of the most successful of these hints, of which he was
not generally known to have been the author, was
that in which he gave to its proprietor the motto
for Truth. Being an excellent Latin scholar, he it
was who suggested the motto, " Cultores veritatis,
fraudis inimici" which was at once adopted, and to
this day is prefixed to every issue of that paper.

Legal or literary friendships were, however, by no
means the only ones the Commissioner had. Among
the clergy his friends were also numerous, and his
intimacy with them has been incidentally mentioned
in an earlier portion of the present chapter. More
than one artist, or one architect, knew him well. Of
the medical men whom he knew, one of his most
1 Ante, p. 306.

Commissioner Kerr

intimate friends was the late Dr. Lennox Browne, who
was also his neighbour at Northwood. The latter's
somewhat sudden and unexpected death, in the
autumn of 1902, apart from the loss of a devoted
medical attendant, had such an effect upon the Com-
missioner that it, with other causes, probably to a very
appreciable extent accelerated his own end.

At one time, too, Commissioner Kerr was an ener-
getic freemason ; and in Scotland, indeed, held high
Masonic rank. For many of the later years of his life
he belonged to no Lodge of Freemasons, and took no
part in the active work of the craft. The reason for
this action was that, as he told the writer, he once at a
Masonic Lodge found himself associating closely with
a man whose case he had to decide the next morning.
He thought it better to take measures to at once
discharge himself of the danger of being ever again
placed in a similar position of embarrassment. To the
last, however, he took considerable interest in the
administration of the great Masonic charities.

When he had been induced to take up what he
knew to be a deserving " case," either in Free-
masonry, or in connection with any other of the
many charities with which he was associated — such
for example as the St. Anne's Asylum — only those
about him were able to form any estimate of the
energy and zeal with which he would work, incessantly
and indefatigably, to secure its success.

A jealous anxiety to treat both his friends and
himself with exact justice, was a marked characteristic
of the Commissioner's mind. Sometimes, indeed, he
carried this so far that it did him an injustice by

312

Shrewdness for Friends' Interests

earning for him the reputation of being stingy and
ungenerous, though he, in truth, was precisely the
reverse. When off the Bench, his desire that justice
in its entirety should reach both his friends and him-
self was as keen as, when he was on it, that all
who came before him should receive it.

As Mr. Macrory has noted, he was always
shrewd and astute to procure justice for his friends
whenever any action on his part could do so. Love
—intense love of it, merely for its own sake, was
part of the man's very nature. To give many instances
of the kindly services of this nature rendered by him
to others would not be by any means impossible,
but might not be agreeable to them, or to their
friends. To tell the tale of the penetrating shrewdness
which prompted a similar kindness to oneself, will at
worst expose one to a charge of being egotistical.
This risk can be taken in view of the consideration
and thought which it shows that the Commissioner
habitually gave to the interests of others as well as to
his own.1 After the death of Mrs. Kerr, in 1884, the

1 A better illustration 01 the anxious care and shrewd thought
exercised by the Commissioner for his friends could perhaps,
however, hardly be found than the tale told in the following
pages. Any delicacy which might otherwise have been felt
about the making public of these has been destroyed by a
Minister, who was himself a party to the understanding referred
to, having stated in a published letter that the subject of it was "not
unwilling " at one time to accept " office," and thus insinuated that
he had sought political office ; whereas the truth is that there had
been thrust upon him a prospect of ordinary professional prefer-
ment in a form which, under other circumstances, would have been
scorned.

313

Commissioner Kerr

Commissioner and the writer, for various reasons,
connected entirely with the latter, saw little of one
another. In the first year of the time, the increasing
calls of a rapidly growing professional practice had
absorbed the writer's whole time. Subsequently
much had happened to him which the Commissioner
could only have learnt from watching the public news-
papers. The former had, in the next year, foolishly
commenced to dabble in the dirty waters of politics,
which soon afterwards became more thin usually
turbid owing to the unfortunate Irish Home Rule
question having come into prominence. In that next
year, he had for many months been engaged in
fighting a hardly contested election against, first, the
late Sir Stafford Northcote, and then, on his eleva-
tion to the peerage, against Mr. (now Mr. Justice)
Kekewich. In November, 1885, having been returned
to Parliament by a majority of over 800, he had hardly
taken his seat in the House of Commons when Mr.
Gladstone's hasty and unfortunate Home Rule scheme
was advanced. This, after much political strife, had en-
tailed another election, which had ended in the writer's
return by a majority of more than 1,200. Scarcely
another year had passed when serious illness followed,
not long after severe blows on the head and elsewhere
had been sustained by him at a riotous meeting in
courtly Kensington's Town Hall, at which he had been
betrayed into presiding, in the supposed interest of the
Unionist party. Then the newspapers had an-
nounced that, being in ill-health, the writer would
not again stand for the seat in Parliament of which
he was in possession. It had been at once em-

Shrewdness for Friends' Interests

phatically denied by him that ill-health was the
reason for the course which had been taken.

All these things were to be learnt, by interested
friends, from the public newspapers. But these did
not state, and the Commissioner consequently could
not have learnt from them, and certainly did not from
the writer, some other incidents which had occurred.
His own kindly shrewdness, however, in a large degree
guessed them. The explanation of the writer's sudden
apparent disappearance from public life had arisen
from both a friend of experience on whom he had
relied, and he himself, having fallen into a mistake
which may be forgiven, since it was made on two
occasions by no less experienced a person than the
most experienced " old Parliamentary hand" of his
century.

On both of these that great man had himself for-
gotten that the exercise of political patronage is always
subject to certain rules. It is said that no Cabinet
Minister allows himself to be bound, in the bestowal
of his patronage, by any promise made by one of
his colleagues. Lord Chancellors and other Cabinet
Ministers are naturally extremely jealous that these
rules shall always be scrupulously observed. Con-
sequently, to have obtained anything like a pledge
from a colleague of the person possessing the
patronage usually affords a tolerably sure disquali-
fication for an appointment. Accordingly, though this
is little generally known by the public, it is said to be
a sort of code of honour with Cabinet Ministers, that
no Cabinet Minister ever asks another to bestow his
patronage in a particular direction ; that, consequently,

315

Commissioner Ken-
no promise by any Cabinet Minister ever binds a
colleague ; and that even his own promise does not
bind a Cabinet Minister when a member of a
differently constituted Cabinet.

These principles, strange as they may at first sight
appear, will be found, on a little reflection, to be
essential to our system of Party Government. On
the other hand, a pledge given by the official party
" Whips " is always observed with the most scrupulous
fidelity. It is kept, indeed, however immoral the "con-
sideration " given for it may have been — such as in
the common instance of a vote being given regardless
of the conscience or convictions of the legislator who
gives it, or no matter how great the unfitness of the
recipient for the proposed appointment may be.
When properly pledged, "the honour of the party"
is always preserved.

It is now tolerably widely known that the great
Liberal leader, forgetting the above principles, on
one occasion, promised a distinguished M.P. lawyer
in the Liberal ranks, of commanding ability, to whom
the nation was already indebted for having worthily and
well acted as one of its representatives on an historic
occasion, that the reward of a judgeship should be
his if he would but, at a sore crisis in the history of
his party, once more contest a constituency in which
his influence was such that he had for some years
represented it in Parliament. Yet even Mr. Gladstone
had been unable to obtain the performance of his
promise by a Lord Chancellor in his own Cabinet,
who is gratefully remembered for the firmness with
which he ever insisted that all judicial appointments

316

Shrewdness for Friends' Interests

in his gift, from the lowest magisterial one to a
seat on the bench, should be filled on his own sole
responsibility, and only when he was satisfied that
the person on whom it was bestowed was as fit a one
for the office as it was possible to find. The same
great Liberal Premier is also well known to have on
another occasion endeavoured to obtain the appoint-
ment to a judgeship of a personal friend, whose fitness
to fill such a position was afterwards generally recog-
nised by its being bestowed on him by political
opponents ; but from his own Lord Chancellor had
again been as unsuccessful in obtaining the appoint-
ment of his friend to a Judgeship.

Now the constituency for which the writer had been
returned had formerly contained, as a centre, a borough
mentioned by Hallam as remarkable for the skill with
which it had, for centuries, evaded the penalties of
notorious corruption. The constituencies formed by
the new county divisions, with the old boroughs as their
centres, had most happily in general created a new
order of things. This one indeed had become, as a
whole, absolutely pure, and even the old borough had
itself mostly become so. Still there were, however,
yet remaining in it a few men who preferred the old
unregenerate state of political matters, and pined for
that more lavish expenditure which it would have
been easy to obtain in the old times. Some of these
thought that his illness afforded a capital opportunity
of getting rid of a man who had plainly told them
that he possessed neither the ability nor the will to
spend money as " freely" as the ancient customs
of the borough had long sanctioned, but whose

Commissioner Kerr

return, by the constituency as a whole, with the
majorities mentioned before, sufficed to show could
hardly be got rid of at any other time. A brace of
local politicians, whose financial positions were soon
afterwards revealed to be such as forbad their them-
selves gratuitously devoting time and money to
politics, conceived the idea that the interests of the
constituency required a new member of less parsi-
monious instincts, and that the desired moment for
deliverance from the old one had arrived They
accordingly had managed to organise a slight show
of local dissatisfaction, though out of some 10,000
electors only their own two voices were found to
give expression to it. This, however, was enough
for the party " whips " in London, who had axes
of their own to grind. These, on the one side,
disliked every M.P. who had felt it his duty to
vote against a measure on which a ministry had
staked its existence, merely because a little consti-
tutional experience had told them, as it apparently
now has some of the very Cabinet by which the Bill
embodying it was introduced, that the exact scheme
for Home Rule in Ireland which was at that period
proposed could never have worked without fatal
friction arising between the two countries named.
Accordingly, no support from that quarter was to be
expected. The " whips " on the other side distrusted
a recruit from the ranks of their opponents, who failed
to show all the zeal which a newly made genuine
pervert is expected to display, and declined to act as
a political drawer of water and hewer of wood for his
new masters, and to support, with a blind belief in its

318

Shrewdness for Friends' Interests

wisdom, any measure or principle which they and his
fellow-perverts demanded that he should.

In this state of matters a well-known and leading
" Liberal Unionist," then recently elevated into a
Cabinet Minister, had thought that he could at once
serve the wishes of his party, accomplish their ends,
and at the same time also benefit the writer, by
persuading the latter to retire from a safe seat in
Parliament, just when he was seeking to regain his
professional position and practice. With this end, he
had pressed upon him strongly that he had a wife
and family to provide for, and that his objection that
retirement from Parliamentary life at such a juncture
would be misunderstood, and taken as meaning that
a complete and permanent breakdown in health had
necessitated a final retirement from all public life, was
sufficiently met by the assurance that he had only to
comply with what was asked of him, and to " stand
aside" at the next election, to enable him to con-
fidently expect some appointment for which he felt
himself to be well qualified. Most reluctantly this view
had been acceded to, after the Minister, whose good
offices and guidance were being relied upon, had
provided evidence by a letter from them, showing
that two other Cabinet Ministers besides himself also
recommended and acquiesced in such an arrangement.
But it turned out that the friend on whom the writer
relied had greatly overrated his newly acquired powers
as a Cabinet Minister, even though he was after-
wards able to reinforce them with the generous aid
of a Duke. Moreover, the writer's would-be friend,
in forgetfulness of the political principles, which have

Commissioner Kerr

been already explained as those by which Cabinet
Ministers are governed in the exercise of their
patronage, and he himself in ignorance of them, had
obtained no formal pledge from the party "whips,"
but had rested content with these being aware of
the arrangements which were made, and taking a copy
of a letter in reliance on which they were acquiesced in.
Consequently when, after the stipulated sacrifice had
been made, the Parliamentary seat had been given
up, and the writer's professional career had, as he
had foretold, been thereby finally destroyed, a ful-
filment of the expectation which had been created
was asked and loyally pressed for by his friend,
the other survivor of the three Ministers who had at
the time been aware of the circumstances had
" frankly " replied that the writer's health — though by
the way it had become far better than it was when
the understanding was volunteered, and its acceptance
pressed — rendered any such fulfilment impossible of
performance. Both the Minister who had attempted
to befriend him and the writer had however innocently
accepted the " health" plea, not as a mere excuse,
as it in truth was, but as constituting a real reason
for the non-payment of the price after the service
stipulated for had been rendered. The latter had
accordingly taken a course similar to that adopted,
at a later period, by Mr. Justice Darling, by trying
to demonstrate his fitness for the post he sought by
previously discharging its duties. He had by his
advice on several occasions sat as Deputy for an
old friend amongst the Metropolitan County Court
Judges, to whom the above somewhat intricate tale
had been made known.

320

Shrewdness for Friends' Interests

Now the Commissioner, though he had never been
made aware of any of the circumstances, and certainly
could not have learnt them from the newspapers, was
watching events with the shrewdness and anxious
desire to assist a friend which ever distinguished
him. So one day he at some personal inconvenience
sought the writer, and when he had found him,
using a form of familiar address, abruptly asked
him, " Pitt, what is the meaning of this advartise-
ment ? " Seeing a little hesitation in answering
the question, he answered it himself with the remark,
" I see you're sitting for French, and as he can
do his own work, and you're not the sort of man
to trouble yourself for nothing, I thought you must
want a County Court out of those infarnal poli-
ticians, and I might help ye perhaps." After this it
was of course impossible not to impart to him the
precise position of matters. He replied, "Ah, I told
Bob directly that it was an advertisement, and that I
should go and see if I could help you " ; and promptly
added, " Come and sit for me a few times, and if
ye can do the work of my Court, ye can take any in
England. But," said he, " I'm not going to let ye do
it till ye've seen the regular dustman at work on the
rubbish heap."

The kindly Commissioner then thoughtfully arranged
not only that he should be seen do his work as an
instructive object-lesson, but also that (as he on several
occasions did) he would himself sit in his private room
at the Court, in readiness to give assistance should it
be required, while his pupil essayed to discharge the
duties of his Court. When he thus acted he certainly

321 Y

Commissioner Kerr

could have had no thought of deriving any personal
benefit from his considerate action, and could have
contemplated no gain to himself from it. Subsequent
events, indeed, as it happened, so fell out as to make
him feel that he required further paid assistance, and
to then call upon the writer to render it to him.
But even then, notwithstanding the moral claim upon
his gratitude which he had thus established, the Com-
missioner voluntarily offered to increase the amount of
the daily fee he would pay to a sum which he said he
knew would be more commensurate with the position
of a Queen's Counsel. The desired assistance of
course could not be refused, but the additional fee
was declined, on grounds which, as recorded in the
Commissioner's words, borrowed from the writer,
were that "more could not be taken in justice
to the Commissioner himself, nor less in justice to
others."

How many of us would have taken all the thought
and made these well-considered necessary arrange-
ments, purely with the object of giving timely aid
to a friend in need, who had not even told his wants ?

Yet further personal example of the Commis-
sioner's kindly thought for another may be told.
After the Corporation's resolution to ask the Lord
Chancellor to appoint two Judges familiar with
Admiralty work,1 he showed it to the writer, with
the advice that he would do wisely to take on all
the Admiralty work of the City Court. This was of
course done. Some months later Lord Russell, the
late Lord Chief Justice of England, seeing him in

1 Set out post, Chap. XII. p. 355.
322

Shrewdness for Friends' Interests

Court, threw down a note, desiring to be seen in his
private room on rising for lunch. It then appeared
that the kindly Commissioner had, feeble as his health
then was, undertaken the exertion of going to see
his old friend Lord Russell, and urging upon him,
apparently in terms far too eulogistic, qualifications
which he deemed to exist for his appointment,
whenever he should vacate it, by reason of the way
in which he thought that its Admiralty work had
been lately performed !

When occasion offered, he would, however, deal with
himself as strictly as he would with another, and mete
out strict justice to himself. The need of frugality
in early life had obliged him to strictly limit his per-
sonal expenditure to a sum always exactly calculated
beforehand. On one occasion, he had allowed himself
the price of a mutton pie for lunch. He carelessly,
after the pie had come in, dropped it into the ashes,
and all efforts to clean it would not render it fit to eat.
Most men would probably have sworn a little, and
sent out for another mutton pie. Not so the Com-
missioner. Nothing could induce him to purchase
another pie for his lunch. Probably enough, he gave
away that very afternoon in some work of kindness or
charity, or possibly paid for the purchase of some
book, print, or curio, enough to purchase many mutton
pies ! But he disciplined himself, and did justice on
himself for his own stupidity. So he merely said to
himself quietly, " Oh, Malcolm, Malcolm, your clumsy
ways have cost ye your lunch ! " To a casual observer
thus would probably appear to be niggardly stinginess.
To any one who knew the man, and the acts of liberal

323

Commissioner Kerr

charity that he habitually and unostentatiously did, it
was something entirely different.

A similar act of self-inflicted justice was the cause
of the nearest approach to a difference between him
and the writer that ever arose, in the course of over
thirty years' friendship. The Commissioner was an
enthusiastic collector of good engravings, as well as a
collector of old books, curios, and antiquities. On the
writer, many years ago, purchasing his library (a
matter of some hundreds of pounds) the Commissioner
insisted that he must accept, as part of the purchase,
three engravings in the room, in sadly dingy frames,
and priced at 75. 6d. for the three. He demurred ; but
was told by the Commissioner peremptorily, " If ye'll
nae tak' the pictures, ye'll nae have the bilks." The
" pictures " were accordingly purchased at 2s. 6d. each,
and forthwith consigned to a cupboard. Years after-
wards, two of the three were discovered to possess
considerable value. Then it was suggested to the
Commissioner that he should take the two engravings
back, and when he refused it was further playfully
suggested that by paying back the two half crowns,
with interest, he might make the transaction fair.
" Nae," said he, "a bargain's a bargain, and ye've just
had the better of me. I made ye take them, and ye
must keep them, though if I'd nae been a fool, you'd
never have had them."

But while thus thoughtful for his friends, and ever
anxious to obtain for them all the justice which he
thought their due, he also claimed complete and
exact justice from his friends for himself.

Thus, for instance, when one autumn, the Corporation

324

Visits himself with justice

had presented him with a gift of a hundred guineas, with
which to take a holiday, he spontaneously selected as
his deputy, while away, an old friend (now deceased)
to whom he knew that it was a consideration to earn
a few guineas during the Long Vacation. Unfortu-
nately, he made no previous arrangement with him as
to the remuneration which was to be paid. There
hardly, however, was room for any difficulty on this head.
For many, many years, in fact during the whole tenure
of his judgeship, the Commissioner always paid the
same fee to his " deputies " as he himself had received
in his own early days, and as was then usually paid
every day to members of the Junior Bar for acting in
that capacity. The great growth of fees at the Bar in
modern days made that amount appear small when
compared with that always allowed by His Majesty's
Treasury, which is rightly regarded by the profession
generally as now the normal amount. But the Com-
missioner had for years never altered the fee he paid ;
his deputies were never other than either personal
friends, who sat gratuitously, and as a matter of
mutual accommodation between the Commissioner and
themselves, or members of the Junior Bar; and, indeed,
one deputy (the late Mr. O. B. C. Harrison), who
was his contemporary, for many years usually acted
for him. The Commissioner neither himself made
any secret at all as to the daily fee which he habi-
tually paid, nor had he any difficulty in obtaining the
help of members of the profession eager to earn it.
Had he indeed been so minded, he could have got
the whole of his work done by deputies, who from

time to time volunteered their gratuitous assistance.

325

Commissioner Kerr

His view was that the annual present of a hundred
guineas which the Corporation for some years gener-
ously gave him I was intended to pay his travelling
expenses and hotel bills while away, as well as
to provide a deputy, in return for his usual scale
of payment, to do the work of his Court during
that time. Accordingly, on his return, he made such
an apportionment of it as he thought would carry out
this view ; and Mrs. Kerr graciously enough called at
the friend's chambers, and left a pretty little clock as a
present. The friend, however, claimed the whole of
the hundred guineas, did so, moreover, in none too
courteous or pleasant a fashion, and returned the clock.
The Commissioner, on being pressed, paid the hundred
guineas without remark, but the friend alluded to
never sat again as deputy for him.

1 As to this see/0.r/ 336.

326

CHAPTER XI.

THE DEVELOPMENT OF " THE CITY OF LONDON COURT"
DURING THE COMMISSIONER'S JUDGESHIP.

THE Court to which the Commissioner was
elected Judge in May, 1859, at that time was
a decaying one, and possessed little business. This
had indeed fallen to so low a level that, as we have
seen, it had been actually suggested in his place in the
council chamber by one member of the Corporation
that its judgeship had become a mere sinecure, and
that it ought as such to be abolished, and that such
trivial duties as it still entailed ought to be performed
by the Common Serjeant.

With the appointment of Commissioner Kerr to the
judgeship an improved procedure and new and vastly
improved methods of business were at once introduced,
as has been seen in a previous chapter.1

A large increase in the Court's business speedily

resulted. For thirty-six years or thereabouts this

steadily increased. The "high- water mark" of the

increase was attained in 1895. The whole of this

increase must not, however, be attributed to the

ability and energy of the Judge of the Court ; and

1 Ante> Chap. V., especially at p. 138 and p. 143.

327

Commissioner Kerr

still less was it due to any aid given to him by
the Corporation of those days towards attaining
it. How far, indeed, they contributed to the success
of the Court, and to the results attained by it, can be
judged from the earlier chapter, in which an outline
is given of some of their dealings with the
Judge.

Candour, however, compels it to be pointed out
plainly that the course of County Court business
throughout the country generally was, up to the end
of 1895, identical with its progress in the City of
London Court. The general course of County Court
progress and retrogression can be seen at a glance in
a most interesting "Comparative Table" contained
in the Judicial Statistics for 1898-1900, published
by the Government, and well known to be the
valuable work of Master Macdonell, C.B. Detailed
statistics are not offered here, since they are so
readily accessible to any one who wishes for them.
A reader who does not care for them, if statistics are
forced upon him, will probably repeat about the writer
the pious wish which a certain well-known and witty
baronet, afterwards himself a Judge, once expressed
about the late Chief Baron Kelly. The latter was
notoriously voracious for "dates." On one occasion
when the baronet was before him the learned Judge,
after he had been told that one or two "dates" with
which he had been furnished were the only important
ones in the case, still pressed for more. Counsel
apparently yielded to this importunity, for he quietly
repeated, "These, my lord, are all the material
dates ; " adding, " I will now proceed to give your

328

Growth of County Court Business

lordship all the immaterial dates." Turning to his
sympathetic learned friends around him, he, in a loud
aside, remarked, the old Chief Baron patiently the
while writing down the immaterial dates, " I wish the
old fellow was in Africa with his maw full of dates."
Only, in place of the word "maw," the directly-
speaking advocate used a term more familiar to
readers of the Bible and to students of Elizabethan
literature than it is in "genteel," or even polite,
society at the present day. Lest a similar impreca-
tion should descend upon his own head, the present
writer will only add that the highest point in County
Court business throughout the country, reached in
1896, was not maintained in the five years imme-
diately following.

The increased business which yearly accrued to
County Courts generally throughout the country up
to 1896 was doubtless due to large increased impor-
tance and more extended jurisdiction which had been
conferred upon them — when they were established in
1845 they were only given jurisdiction in certain
classes of action, up to £20. Five years later, this
limit was (in 1850) raised to ^50. In 1865 a limited
jurisdiction in Equity, up to ^500, was bestowed, and
in 1868 the County Courts were given an Admiralty
jurisdiction. Moreover, the class of cases in which
common law jurisdiction could be exercised by them
was, till 1896, gradually being enlarged.

While it is but fair and right that the above facts
should be pointed out, justice to Commissioner Kerr
also requires that the part which he took in obtaining
for the Court over which he presided the full benefit

329

Commissioner Kerr

of all these extensions of jurisdiction should be also
pointed out.

The Commissioner's judicial watchword, as it were,
is pointed out to have been the Latin motto, " Est boni
Judicis amp Hare juris die tionem" — or, in English, that
it is an attribute of a good Judge to enlarge his juris-
diction. Judged by this motto Commissioner Kerr
was one of the best of Judges.

The enlargement of County Court jurisdiction from
£20 to ^50 had done nothing to benefit the Sheriff's
Court, though it, like the County Courts, had been
in 1852 given a similar jurisdiction by the Local Act
—the London (City) Small Debts Act, 1852. This,
too, had been obtained during the time when Mr.
Russell Gurney, Q.C. — the excellent Recorder of
London in later days — was the Judge of the Court.
The days of Mr. Prendergast had certainly seen no
improvement in the Court's business. This was at
a very low ebb when Commissioner Kerr was
appointed in 1859. His improved procedure and
vigorous methods at once brought an increase in it.

When, in 1865, the County Court Act of that
year gave an Equitable jurisdiction to all County
Courts, the City of London Court would not have
obtained it unless Commissioner Kerr had at the
last moment secured a similar jurisdiction for his
Court. A less energetic Judge would have let the
matter alone, and comforted himself with the reflec-
tion that " The Sheriffs Court of London," as it was
then called, had never possessed any jurisdiction in
Equity. Instead of being thanked for his zeal and
activity in this matter, the reward which he received

330

Jurisdiction of City Court extended

from the graceless Corporation was that a report into
his conduct was ordered, and it was reported that he
had been " guilty of a breach of privilege." The real
offence which he had committed, obviously, was that he
had been guilty of the heinous one (in the eyes of the
Corporation) of, while securing the extra jurisdiction,
also protecting himself from being called upon to
exercise it without being paid for so doing ! This
remuneration was secured for him by the Lord Chan-
cellor of the day, and was in amount the same as that
given to others on whom the exercise of the new
Equity jurisdiction was imposed. Moreover, while,
as is shown by the most casual glance at the figures
in table " A " in the Appendix, the Commissioner had
in the first year doubled, and in each subsequent
year more than doubled the Judge's fees earned by
his Court, no extra payment for this increase was for
years given to him. It is true that when the whole
matter came into the hands of professional men, such
as the Law and City Courts Committee for the
most part are, justice was at length done to the
Commissioner, but only after scenes had occurred
with the body of the Corporation as to which the
reader has had an opportunity of forming a judgment
what we have given in a previous chapter.1
It had been no fault of Commissioner Kerr's, too,
that a Bill had not become law creating an improved
procedure in his Court, for we have seen that he had
prepared such a Bill for this purpose not long after he
had been appointed to the judgeship. This had
doubtless not been altogether labour in vain, since
1 See ante, Chap. V., especially at pp. 150, 155, and 161.
331

1 \^C

by

Commissioner Kerr

the Commissioner's friend, Lord Westbury, in 1867,
by his County Courts Act of that year, made the
procedure of the Commissioner's Court subject to the
rules governing the practice of County Courts gener-
ally, and at the same time changed its name into that
of " The City of London Court."

In 1868, a jurisdiction in Admiralty was conferred
upon such Courts as might be selected by Order in
Council to exercise it. Commissioner Kerr's vigilance
and energy again secured that his Court should be
one of those selected to possess the new jurisdiction.
The experiences of 1865 were repeated, though in a
slightly different form. The Corporation once more
showed themselves to be alieni appetens — in other
words greedy for the new jurisdiction — but not
" sui profusus" — or lavish in their payments. It
was not till the Lord Chancellor was taking away
the jurisdiction which the Corporation were anxious
to possess, but for the exercise of which they were
not equally eager to pay, that the latter agreed
that they would arrange for the Commissioner's
proper remuneration if his lordship would abstain
from conferring it upon another metropolitan Court
(Whitechapel having nearly obtained it).

It must not be supposed that the exercise of a new
jurisdiction, such as that in Admiralty, gave little or no
trouble to the Judge who was called upon to exercise
it. When, over thirty years later, the present writer
went much up and down the river, in order to qualify
himself to exercise the Admiralty jurisdiction for
the Commissioner, whose habitual deputy he had by
that time become, he ascertained that the Commis-

332

Admiralty Work

sioner had himself taken a similar course when he
first became possessed of the jurisdiction, and that his
shrewd sayings and observant ways were still well
recollected by the old sailor and river folk on the
Thames. More than once when inquiring into some
subject he was met with the remark, " Ah ! that's just
what old Commissioner Kerr asked me when he used
to come here." But the Commissioner, intimately as
they knew each other, had never mentioned to his
disciple the trouble he had taken himself to acquire
a practical knowledge of his Admiralty work, and in all
probability had made no one else aware of it.

From the time when the Corporation left matters in
the hands of a committee, and the General Peace, as
we have called it, of June, 1869, was, by their good
offices, effected between the Corporation and the
Judge, the latter's salary was placed at, and from
time to time raised to, amounts more adequate to
compensate him for his labours than those previously
paid. For some years onward from 1859 he
appears to have received no remuneration whatever
for the great reforms he had effected in the City Court,
and the great increase in business, and consequently
in fees, which had resulted from it. Till 1865, the
Commissioner's salary remained at ^900 a year — in
other words, at nine-fortieths of the amount which its
fees earned — when the Commissioner was first ap-
pointed to the Court. Had this proportion of nine-
fortieths of the earnings of the Court been frankly
and from the first taken as the basis of the salary
for its judicial staff, and recognised and accepted all
round as the proper basis, much trouble and mis-

333

Commissioner Kerr

understanding would have been saved alike to the
Corporation and to the Commissioner.

During the year 1889 the fees levied by the
Court closely approximated to ,£15,000 (they were,
to be exact, ,£14,839), as is shown by the Table
in the Appendix, and they were still rapidly
increasing — in other words, the work had become
between three and four times as much as it was in
1859. The Corporation naturally desired that it
should continue to increase. So they at the end of
1889 came to an arrangement with the Commissioner
that the Court should in future have " continuous
sittings," i.e., that it should sit upon all the working
days in the week except on Saturday. The experi-
ment was financially a success, for during the next
five years (1890-4) the Court's business increased by
close upon .£8,000 a year.

The arrangement made at the end of 1889 was an
unfortunate one. The Corporation could not fairly
blame the Commissioner for this, nor could he blame
them. Speaking with an experience of several years'
work at the City Court to guide him, the present
writer does not hesitate to say that no man — not
even such a legal Hercules as the Commissioner —
could in the Commissioner's time long sit on more
than three days a week at the Court with impunity,
so great was the mental strain of the rapid work there
done, and that if he attempted to do so he would soon
suffer in health, as indeed the Commissioner did very
soon after he began the effort to do it. The work
had already grown too much for any one man.
But this was not remembered on either side. The

334

New Arrangements in 1889

Corporation were anxious to get their " continuous
sittings," or sittings on five days in each week,
and so long as these were held did not stop to
sufficiently consider by whom they could be under-
taken. The Commissioner had been obliged, for
family financial reasons, to be frugal and thrifty,
perhaps to a fault, in his younger days, and never to
spare himself any labour which he thought that he
could profitably undertake. He did not now pause to
consider that he himself was approaching seventy years
of age (he was then sixty-eight), and that it must always
be a serious thing for a man well past the prime of life to
enter upon any serious additional labours. His salary
of ,£2,700, which was the amount that he then and
for some years previously was in receipt of as Judge
of the Court, was three times that (viz., ^900 a year)
which had originally been paid to him, and repre-
sented with tolerable fairness the additional income
which he ought to have received proportionately to
the increase in the business. A second Judge clearly
ought to have been appointed in 1889 to act subor-
dinately to the Commissioner, but to be paid directly
by the Corporation. It should have been this second
Judge's duty to sit on at least three days a week
in relief of the Judge, who, though then still vigorous,
was now growing old, and thus discharge any ad-
ditional duties which might arise from any of the
prospective increase of business. The Admiralty
business of the Court, and that which might be done
in remitted actions and by the establishment of a
Central County Court, to this day remains largely
undeveloped.

335

Commissioner Kerr

Unfortunately, however, none of these considera-
tions were suggested by any one. For some years
previously the Corporation had been accustomed
to present their Judge of the City of London
Court with a handsome gratuity of 100 guineas
each year to enable him to enjoy a well-earned
autumn holiday — a wise and generous arrangement,
most excellent both for the Judge himself and for
his Court. The 1889 arrangement provided that the
Judge's actual salary should be increased by ^500
a year, on the understanding that the annual gratuity
of 100 guineas should be given up (thus making the
real increase only ^395 per annum) ; and that he
should, in return for the increase of salary, undertake to
hold " continuous sittings," i.e., sittings on five days a
week during most of the year, and should at his own
expense, and out of his own pocket, provide himself
with such assistance as he might from time to time
think required.

The result of the actual 1889 arrangement was
exactly that which might have been expected from a
man of the Commissioner's frugal and energetic dis-
position. His energy made him think that he could
do most of the additional judicial work himself; his
thrift and frugal habits suggested that it would be
a "saving of expense" to do it. He had no wife
whose wise counsel might have guided and re-
strained him. Consequently, like many another
man, he unfortunately overworked himself. At the
end of three years this had become so apparent
that he " was over and over again urged " by his
medical men "to reduce the number of his Court

336

Sudden decline of Business in City Courts

days." But this he would not do, and " held on,"
with the result that during 1893 and 1894 he was, as
he himself admits, " a martyr to dyspepsia." The
" dyspepsia " soon developed into that terrible agony
known as " Angina pectoris"

That the arrangements made in 1889 did not
adequately provide for the business of the Court
subsequently soon became otherwise unpleasantly
manifest. This continued to follow its normal course
till about 1895 ; and up to that time the business of
County Courts largely increased every year both
throughout the country and also in the City of London
Court. The highest development of such business
ever attained to was reached, alike throughout the
country and in the City of London Court, during the
year 1894. Immediately after this a sudden decline
of such business occurred, both throughout the country
generally, and in the City of London Court. But
while, during the next five years, taken as a whole,
there was a slight recovery of business which,
throughout the entire country, amounted at the end of
the period to an increase of over four per cent, on the
County Court business for the immediately pre-
ceding period of five years, no similar revival of
business took place in the City of London Court.
That Court has never recovered from the sudden fall-
ing off of business which occurred in 1896, alike there
and in the country generally. Not only was there no
increase again in business of the old type, but the
business in Admiralty and in the number of remitted
actions which might have been developed did not
take place. The consequence was that at the end

337 z

Commissioner Kerr

of the five years concluding in 1900, the total result
of the period was, for the first time during the Com-
missioner's tenure of the judgeship, marked by a
considerable decline in business, instead of by any
such an increase of 4 per cent, on the previous five
years' period, as had taken place in the country gene-
rally. It is therefore clear that to find the reason
for such decrease we must look for some local causes.
It is not hard to discover one.

The arrangements made in 1889 were deficient
in that they were sadly wanting in definity and
finality. Suitors like to know by whom their cases
will be tried; in other words, " before whom it will
come," as the phrase commonly goes. This in the
City of London Court, during the last ten years of the
Commissioner's judgeship, they unfortunately never
could foretell. If the Commissioner himself were well,
it was, for the reasons already mentioned, practically
not possible for him to sit at the City Court on five
days continuously in each week during all the year
round. This difficulty was supposed to be met by his
possessing three different powers of appointing some
substitute to sit for him. Under the Local Act, he
could obtain the assistance of a "deputy" during any
sixty days in each year, if the Corporation approved
of his having such a power ; and it had been, con-
tinuously since 1859, their custom to confer it every
year. Next, if too unwell to sit, the Judge could, at
any time, appoint a deputy of his own mere notion,
and without the sanction of the Corporation. Finally,
he was, by the General County Courts Acts, from
1867 downwards, empowered to receive assistance

338

His Retirement considered

from any other County Court Judge who would act
for him. Up to November, 1891, he usually had the
help of his old ally, Mr. O. B. C. Harrison (" Alpha-
bet" Harrison, as he was familiarly called), to sit as
his deputy. On Mr. Harrison's death he obtained the
services of another Barrister to act as "deputy" when
the aid of one was required.

The confusion in the minds of suitors which was
created by this multitude of possible Judges before
whom their case might be tried was subsequently
made even worse than this.

In 1894 the retirement of Sir W. Charley and the
state of the Commissioner's own health caused con-
sideration to be given to the subject of the pensions
to be paid to the Corporation's law officers. The
Commissioner then found himself, after thirty-six years'
service, placed on the same footing as the Recorder
and the Common Serjeant, who had only each served
about fifteen years. He drew attention to this, and
announced that he declined to retire on terms such
as those suggested.

In the year 1895, a^ prospect of the Commissioner's
immediate retirement having now disappeared, the
Law and City Courts Committee proceeded to make
a further arrangement which they doubtless intended
should afford him additional help in the discharge
of his official duties. In addition to the three
modes of appointing substitutes to sit for him which
he already possessed under the two powers in the
Local Act and that in the General County Court
Act, it was decided that yet a fourth power should be
created for him. Under a comparatively modern Act

339

Commissioner Kerr

(the Borough Courts Act, 1870) passed some twenty-five
years previously, an ''Assistant Judge" was in 1895
appointed with power to sit on a further sixty days in
each year if called upon by the Commissioner to do so.
By the terms of the appointment the Assistant Judge
was not under any obligation to sit when even so
desired ; while the Commissioner was under no obliga-
tion to ever employ him. Here again was a sad want
of finality and definite settlement of anything. The
Commissioner intended the arrangement, by which an
Assistant Judge was appointed, with power to sit on
sixty days in each year, to be in addition and supple-
mentary to the various powers of getting a substitute
when he was so desired, which he already possessed.
He was unwilling to place himself entirely in the
power of the Assistant Judge, by never availing himself
of the services of any other of his friends, some of
whom were very old ones, by asking them to sit
when either their own convenience or his might
render them willing to assist him. He naturally felt
it would be the more desirable that he should from
time to time obtain these, as the Assistant Judge
had taken upon himself no obligation to sit when
wanted ; and had indeed, as the Commissioner under-
stood, rather expressed (informally) a wish to be left
" free." The Assistant Judge, on the other hand,
took the view that, whenever his services were avail-
able, the Commissioner was bound, if he accepted
assistance, to employ him and pay him, and must not
exercise his powers in favour of any one else, even a
friend who might be willing to sit as such, and without
payment for so doing. A very painful disagreement

340

Great falling off in Legal Business

on this point arose between the Commissioner and his
Assistant Judge on the former's exercising his old
statutory powers in favour of the late Mr. Besley,
Q.C. It was renewed both when the present writer
sat as deputy — at first gratuitously — and became even
more acute when, at the request of his old friend, and
in order that the latter might maintain rights that he
regarded as valuable, the writer consented to sit for
him for payment. It would be of no interest to
the public, any more than it would be proper
that, under these circumstances, the merits of this
matter, or the details of the dispute, should be dis-
cussed here.

The appointment of Assistant Judge was made in
April, 1895. Hardly, however, had the ink grown
dry upon this appointment, when it became clear
that such assistance would not be required. That
great falling off in legal business all over the country,
which has been before mentioned as clearly shown
by legal statistics to have arisen about this time, com-
menced about the Long Vacation of that year (1895).
Its existence was recognised very speedily. And
during the controversy which subsequently arose as to
the number of days on which the City of London
Court ought to sit, a letter fully explaining it was
early in 1898 addressed to the City Press by Mr.
A. W. Timbrell, a solicitor of large and long ex-
perience, and a member of the Law and City Courts
Committee. Quoting official returns, issued by the
Queen's Printer, the writer showed that in Birming-
ham there had been in a year a decrease in the fees
earned from ,£22,464 to ^19,930 ; in Manchester one

Commissioner Kerr

from ,£8,602 to ,£8,392 ; and at Liverpool one from
j£9'3%3 to .£8,890. Moreover, to quote the words of
the letter, "a decrease of fees prevailed in nearly
all the County Courts throughout the country." This
general decrease in County Court business was, in
the letter, " attributable, in the City of London
Court, to the improvement in trade." The effect
of the decline in the City Court was, for the year
1896, some .£1,761. Under these circumstances,
the Commissioner, perceiving from the monthly
returns of the Court's business that there was this
great falling away, considered that the work of the
Court could be well discharged by sittings on three
days in every week, and accordingly intimated to the
Assistant Judge that his services would not be much
required, and suggested his resignation, which,
however, was not tendered in accordance with this
advice.

The Corporation then fell, according to the Com-
missioner's view, into an error which too often occurs,
and is not uncommon with large public bodies, and
confused cause and effect. The Sittings, the Judge
said, had been reduced in number because there had
been a previous falling off in the business entered in
the Court, and there was now not enough of it to
occupy more Sittings. On the other hand, some
members of the Corporation, and some newspapers,
said that the falling off in the business had followed
upon, and was in consequence of, the reduction in the
number of the Sittings. The Corporation, through
their Law and City Courts Committee, at first took
this latter view. They obtained an opinion from Sir

342

The Sittings of the Court increased

Edward Clarke, Q.C., and Mr. Danckwerts, that the
Local Act still gave them a right to fix the days on
which sittings of the Court should be held. The
Commissioner, on the other hand, pointed out that, as
he contended, a provision in the Act of 1865 had
vested the right to fix the sittings of the Court in him,
and that he had accordingly done so for the thirty
years which had elapsed since. Acting upon a sup-
posed right which, according to the opinion of Sir E.
Clarke and Mr. Danckwerts, was possessed by them,
the Common Council, on the recommendation of their
Law and City Courts Committee, proceeded to fix
daily sittings during certain months for which the
Commissioner had only appointed about half the
number of sittings. The experiment was not success-
ful. The Commissioner convinced the Law and City
Courts Committee, by returns of the number of hours
during which the sittings had lasted, both when he
had himself fixed daily ones and when the Corporation
had done so, by the corroboration of his views by
testimony of the Registrar, that there was not sufficient
business to occupy such frequent sittings, and by
arguments similar to those contained in Mr. Timbrell's
able letter already abstracted. On these materials,
the Committee came to see that there was at that
time (1896) no necessity whatever for daily sittings.
Communications and conferences took place between
them and the Commissioner. As the result of them,
the Committee advised the Corporation to compromise
matters with the Commissioner by agreeing with him
that sittings of the Court should be held upon four
days in the week only. It will be remembered that

343

Commissioner Kerr

the City authorities had originally demanded sittings
on five days in each week, while the Commissioner
had fixed them for three days a week only. The
compromise recommended by the Law and City
Courts Committee was adopted by the Common
Council at the end of July, 1897. During the
remainder of the Commissioner's tenure of office sit-
tings of the City of London Court were accordingly
held upon four days in the week only.

The enormous increase in the business of the Court
during Mr. Commissioner Kerr's tenure of its judge-
ship was, as has been seen, not accompanied by an
increase in the Judicial Staff of the Court. The Com-
missioner continued to be responsible for the work
single-handed, with only such casual assistance as he
might from time to time obtain from brother Judges
under the County Court Act of 1888 ; from friends
and others employed to sit as deputies; and, after 1895,
from the Assistant Judge if he chose to avail himself
of his services. In case of illness he had an unlimited
power to appoint deputies to supply his place.

As regards the Permanent Staff of the Court, how-
ever, matters were wholly different. On the Commis-
sioner's retirement in 1901, after forty-two years'
service, a brief account of the great increase in the
staff of the Court necessitated during his judgeship,
was given in a valedictory notice of the Commis-
sioner which appeared in the City Press of August
7, 1901. An extract from that notice tells its own
tale. It says that : —

It may be interesting, as showing the development of the Sheriffs
Court or, as it is now termed, the City of London Court, to mention

344

Courts' Permanent Staff

that, on the Commissioner's appointment, the business was transacted
in a comparatively small room on the first floor of a very small building,
whereas to-day the cases are heard in two of the finest and best
courts in the country, and the new premises were erected at a cost
of upwards of ,£24,000. In the year 1859, the staff comprised the
Registrar, seven assistant clerks, a high bailiff, and five subordinate
officers; whereas to-day there are the Registrar, twenty assistant
clerks, a high bailiff, eleven subordinate officers, and an official
shorthand-writer. In 1860 the number of actions heard was 9,970,
the fees levied were £4,265, and the amount sued for was £32,911.
Last year (1900) the number of plaints issued was 35,475, the fees
levied were £"18,758, and the amount sued for was £206,125.

Amongst the permanent staff were many who, like
Mr. George Mitchell, owed their positions to the
kindly interest taken in them by the Commissioner.
He never failed to exert his influence to procure an
appointment in the offices of the Court for either
a friend in actual need or a man really in distress
whom he thought able to discharge the duties and
worthy of help.

Complaints about the defects of the building in
which the Court was held that had arisen as early
as 1859, and so well described in the letter in 1862,
are set out on an earlier page.1 They, however,
continued to be unremedied for many a long year, and
notwithstanding the great increase in the business.
At length, in 1882, a private Act of Parliament was
obtained, giving the Corporation power to use some
of the moneys of the Unclaimed Suitors* Funds in
rebuilding the Court, much in the same way as use
had been made of a similar fund in the High Court
to erect the Royal Courts of Justice. After con-

1 Ante, Chap. V. p. 146.
345

Commissioner Kerr

siderable negotiations as to the site, and afterwards
about the plans, the foundation stone of a new Court
was laid by Lord Chancellor Halsbury on the 23rd
of November, 1887, as recorded in the following issue
of the Law Times, and the building was opened about
a year afterwards, viz., on the 6th of December, 1888,
by the then Lord Mayor, Alderman Whitehead, as is
recorded on a brass plate erected in the entrance hall.
In 1893 the falling-in of a short lease, the extravagant
price asked for which had prevented the earlier
erection of it, an extension of the building was
begun. The foundation stone for this extension was
laid by Mr. William Japhet Tickell, the then Chair-
man of the Law and City Courts Committee, on the
I9th of July, 1893, and tne extension having, like
the original structure, taken about a year to complete,
was opened on the 2nd of April, 1894, by Mr. Claudius
George Algar, that year's Chairman of the Law and
City Courts Committee, as recorded on another brass
plate, which is placed in a position where it is but
little seen by the general public. The new City of
London Court is certainly now by far the best County
Court in London. But when first opened it, like all
new buildings, had some defects which have since
been remedied. Amongst other mistakes then made
the jury were at that time placed almost behind the
Judge and complained that they could not hear.
Said Commissioner Kerr with good-humoured sar-
casm, "The architect of this Court has heard that
Justice is blind, and so he appears to have jumped
at the conclusion that she is deaf also."

The completion of the development of the Court

346

His Fortieth Anniversary

was, as has been seen, reached in 1895, and con-
siderably before the time the Commissioner had
completed his forty years' service as a Judge. On
his doing this, he was finally congratulated upon it
by the advocates practising in the Court. The
following is a report of what then took place, as
recorded in the City Press of May 6, 1 899 : —

MR. COMMISSIONER KERR'S FORTIETH ANNIVERSARY. CON-
GRATULATIONS OFFERED BY THE SOLICITORS.

Yesterday many members of the legal profession attended at the
City of London Court to offer their congratulations to Mr. Com-
missioner Kerr upon completing his fortieth year as Judge of the
Court, he having been appointed on May 5, 1859. Mr. JOHN
FARNFIELD, who acted as spokesman, asked to be permitted, on
behalf of his friends around him, to congratulate the learned Judge.
He could well speak, as he said, as the Senior Member of the
Profession, for he found that he signed the roll of the Court as
one of the Practitioners so long ago as 1863, having been under
articles when the Commissioner was appointed. Ihe Court, at
that time, did quite a small business, for there were only 11,596
plaints issued, and the income was about ,£4,100. Last year,
the plaints numbered 35,935, and the Court's income was just
under £30,000. During the past forty years there had been
great changes in the administration of justice, notably in instituting
default summonses. When Mr. Charles Morgan Norwood, the
member for Hull, was bringing about the institution of default
summonses, he told him (Mr. Farnfield) that he was much struck
with the legal acumen displayed, at the time, by the gentleman
whom he was now congratulating. During the thirty years that
the Court had had Admiralty jurisdiction, 6,315 actions had
been entered, giving an average of something like 210 per annum.
The business generally having increased, of course the staff had
had to be strengthened, and it now numbered 40, only 14 officers
having been required in 1859, the year of the Judge's appointment.
Many of the gentlemen who had practised before His Honour had
risen to high positions in the legal world, amongst others being
Mr. Justice Bruce, Mr. Justice Bucknill, Mr. Justice Phillimore,

347

Commissioner Kerr

and Sir Charles Hall, the Recorder, all of whom had attained to
places of distinction partly through what they had learned at the
City of London Court. He was pleased to be able to congratulate
the Judge on being in robust health, and on the fact that his
intellect had not been dimmed by the many years' service he had
rendered to the Corporation. Some of the remarks which he made
from time to time were caustic, and they were felt severely now and
then by unfortunate members of the profession, and the public too,
for that matter. Practitioners at any rate knew, however, that
when the lash was applied it was for their good, and for the good
of the Court. Rumours of resignation abounded on all sides, but
he, for one, did not believe that the Judge had the slightest intention
of resigning. Why should he ? When he did not want to sit, and
wanted a change, he could appoint a deputy. The Corporation
had borne excellent testimony to the Commissioner's powers, for
they had decided that, when he went, it would be necessary
to have two young men to do the work, which he found himself
quite able to do, although he was considerably past seventy years
of age. In conclusion, he could only say that, if the time ever did
arrive for the Judge to retire, he would be able to look back on the
many years' association with the Court, and remember how useful it
had been to many people. Mr. GEORGE KEBBELL, as a practitioner
for thirty years, added a few words of commendation. Mr.
STEPHEN LYNCH, on behalf of the Bar, cordially endorsed all that
had been said. They all learned a great deal at the Court, he said,
and if the Judge did retire it would be to the lasting regret of all
concerned.

Mr. COMMISSIONER KERR thanked the gentlemen who had
spoken so kindly. They had taken him quite by surprise, he
remarked, because, although he knew that that day was the fortieth
anniversary of his election to the Court, he did not anticipate that
any notice would have been taken of the fact. Mr. Farnfield had
spoken in far too flattering a manner of himself. The business had
greatly increased, and the jurisdiction of the Court had greatly
extended, while he had been the Judge. They must not lose sight
of the fact that business in London generally had vastly multiplied
during the past forty years, and to that circumstance was to be
attributed to some extent the increase of the Court's business. He
did not presume for one moment to think that he had personally
done much to effect it. He had endeavoured to do justice, to the

348

Celebrates Fortieth Anniversary

best of his ability, in every case, but he knew he was not infallible.
He had a good many deficiencies of one kind and another. County
Court Judges had not the advantage of knowing what the issue in
each case was, for in the County Court there were no pleadings. A
great deal of trouble had to be gone through sometimes in eliminat-
ing the facts and ascertaining what the real issue was. In so doing
one's patience was often much tried, and, speaking for himself,
perhaps at times he had showed impatience. If at times he had
been, as was said, a little caustic, it had been through no ill-feeling
whatever. He felt very much the honour which had been done to
him in addressing him on that occasion. While he had always been
actuated by the simple-minded intention of doing what was right,
probably he had not always succeeded. He would never forget
what had been said that day, and he could only hope that, during
the short time that he might remain there — whether it would be
short or long he did not for the present know — he would continue
to have the confidence of the gentlemen who practised there, and
they would make allowance for his deficiencies. The longer one
sat as a Judge the more one became conscious of one's deficiencies.
He thanked one and all very heartily for coming there on that
occasion.

The business of the day was then proceeded with.

349

CHAPTER XII.

THE COMMISSIONER'S FINAL BREAKDOWN, RETIREMENT,
AND DEATH, WITH SOME APPRECIATION OF HIS
LIFE, WORK, AND' CHARACTER.

THE same year (1899) as in May saw the cele-
bration of the fortieth anniversary of the Com-
missioner's appointment to his judgeship had already,
in its February and March, seen arrangements made
as to the duties and emoluments of his successors. In
its last month it witnessed the removal of an obstacle
created in the preceding May, which had probably
alone prevented his retirement upon that fortieth
anniversary itself, or at least as soon as he had
celebrated it.

The arrangements for the discharge of the duties of
his Court by a substitute in his absence had never
been entirely comfortable or satisfactory to the Com-
missioner since the death of his old deputy and friend,
Mr. O. B. C. Harrison, in November, 1891. Very
soon after this event, indeed, a Barrister known to his
son, but with whom he was himself till then but little pre-
viously acquainted, had commenced to act as deputy,
and continued for some time so to do. When the pres-
sure of business was great at the Court the Commis-

350

Health interferes with duties

sioner had, as has been seen, in order to obtain sixty
additional days which he could, if necessary, make
use of, and for other reasons which it is unnecessary
to discuss, had arranged that the Barrister who had
been recently acting as deputy should become Assistant
Judge. Much sympathy, perhaps, had never existed
between the Commissioner and his Assistant Judge,
and when, within a few months afterwards, the serious
and sudden decline in the business of the Court fur-
nished a reason, he had at once given his new Assistant
Judge notice that his services would probably be but
little required, and advised his retirement. Subse-
quently, when the "four days a week" compromise
was made with the Corporation, the history of which
has already been described, the unfortunate claim
which has been mentioned before was advanced by
the Assistant Judge, and pressed by him in a way
and to a degree which unhappily greatly irritated
the Commissioner, and made him less inclined than
ever to concede the right which he, justly or wrongly,
thought that justice to himself did not permit him to
recognise.

The arrangement that his Court should sit upon four
days in each week was, however, scrupulously carried
out by the Commissioner. Within a few months
after the arrangement of July, 1897, had imposed
upon him the duty of providing for sittings of the
City Court being held on four days a week, it gradually
began to grow manifest, alike to his friends and him-
self, that the Commissioner was not equal to the work.
It had consequently to be largely discharged by the
aid of his friend, Judge Snagge, a well-known Judge

Commissioner Kerr

who still occupies a seat upon the County Court
Bench ; and of a deputy from time to time appointed
to undertake it. As time went on the need for
assistance became greater and greater. When free
from the attacks which from time to time seized
him the Commissioner could perform his duties
with vigour, and with satisfaction to the suitors as
well as to himself. But he could no longer rely with
any confidence upon being able to discharge such duties.
Thus on one occasion he had returned from Paris,
whither he had gone for a change and with the hope
of benefiting, in an apparently vigorous state. Said
he, with the humorous playfulness which always
characterised him when well, " Now, Pitt, you can
knock off, and go to-morrow and spend a happy day
at Rosherville, and several if you like, for I'm going
to do all my own work for the next fortnight after all
this holiday." But the following midday the writer was
hastily summoned from the Temple, and proceeded to
the Court to find the poor Commissioner writhing with
agony in his arm-chair under a frightful attack in his
chest, and utterly unable to complete the day's work,
only a very small portion of which remained to be
done. On another occasion, after leaving the Com-
missioner one afternoon, with an announcement from
the latter that he felt he could do his own work for
several days to come, a telegram received at breakfast
next morning told that he was unable to even come to
Town that day. Each of such attacks as these usually
incapacitated the Commissioner for days together, and
left him exhausted and weak for a considerable time
after they had passed away. An occasion recalls itself

352

A Pension Suggested

when, the renewal of his power to appoint a deputy
being temporarily delayed, the Commissioner had
arranged to take his own Courts daily till it was
obtained, but was taken suddenly unwell, and showed
symptoms which made those about him apprehensive
lest a paralytic stroke should happen to him. In this
emergency he was rescued by the ready thoughtful-
ness of the kindly Judge Snagge, who, as soon as he
became aware of the disquieting condition of things,
gave up the Court of his own which had been fixed
for the morrow, sat in place of the Commissioner, and
sent a deputy to discharge his own work.

Although the state of matters had not then yet
become as serious and aggravated as it afterwards
grew to be, yet as early as in the spring of 1898 — in
other words, only a few months after the sittings on
four days a week had been arranged for — negotiations
commenced for the Commissioner's retirement upon a
pension. As a result of these negotiations the amount
of this pension was agreed at ,£2,700 a year. In May,
1898, the Law and City Courts Committee brought
up a report recommending that this pension should be
granted. But upon its coming up at a meeting of the
Corporation a Common Councillor moved that it should
be only granted on condition that such pension should
be accepted, and that the Commissioner should retire
within the ensuing six months. At the suggestion of
Mr. Timbrell, whose sensible letter on the decline of
the Court's business has been mentioned in the pre-
vious chapter, the mover of this condition consented
for the Commissioner's retirement to be enlarged to
twelve months. In this modified form the added con-

353 2A

Commissioner Kerr

dition was carried, and made part of the terms of the
grant of the pension. Great was the indignation of
the Commissioner at what had been done on returning
from Paris, whither he had gone for the sake of his
health, and with the full intention of retiring upon his
return. "I will not," he said, " be kicked out on
twelve months' notice after nearly forty years' service."
His indignation was made none the less by the fact
that the Common Councillor who caused the obnoxious
condition to be added had been an unsuccessful liti-
gant in the Commissioner's Court, and thus was open
to a suspicion of having acted from personal dislike.
Probably such was not the case ; but doubtless the
persecution to which an unsuccessful litigant in his
Court had subjected him in the early days of his
judgeship, as described in an early chapter,1 made the
Commissioner exceedingly sensitive upon the matter.
At all events, he indignantly declined to retire at a
time thus dictated.

In February, 1899, however, the Corporation antici-
pated that the Commissioner's retirement would take
place about the time of the celebration, on the ap-
proaching fortieth anniversary, on May 5th, and conse-
quently within a twelvemonth after the adoption, on
May 26, 1898, of the condition which had proved so
obnoxious to their old servant. Accordingly they,
early in February, 1899, formally referred it to their
Law and City Courts Committee to report whether any
and what steps were necessary or desirable to be taken
in anticipation of next avertence of office of Judge of
the Sheriffs Court. This Committee, in March,
1 See ante, Chap. V., at p. 154.
354

Committee's Recommendations Adopted

1899, reported to the Common Council that a sub-
committee of their body had resolved unanimously
and they themselves accordingly recommended :

(1) That two Judges, with a knowledge of Ad-
miralty, be appointed with Salaries of ,£2,500 and
,£2,000 respectively, in lieu of all fees, present or
future.

(2) That the Lord Chancellor be informed that in
fixing so large amounts the salaries are assigned on
the understanding :

(a) [That there are to be daily sittings.]

(b) That the salary is, in each case, a maximum

one.

(c) That the Judges retirement allowances are

the same as ordinary County Court Judges,
namely, two-thirds of their salary.

The Corporation adopted these recommendations.

The Commissioner, however, though these arrange-
ments had been made, still remained at his post, and
celebrated the fortieth anniversary of his appointment
as recorded in the preceding chapter.

It soon, however, became again apparent that the
work of the Court was too much for him. He took a
long holiday in the autumn of 1899, and then returned
to work at the Court.

In December, 1899, the pension of ,£2,700 a year,
previously offered, with the objectionable condition
appended to it that the Commissioner's retirement
should take place within a year was, with excellent
judgment and good taste, again granted, and this
time unconditionally.

Though this had been done, the Commissioner was

355

Commissioner Kerr

still very loath to finally and altogether quit the Court
in which he had laboured so long. He came to a
determination, early in the following year, to try
the effect upon his health which would be produced by
a prolonged holiday in the early spring, and particularly
whether a certain " Swedish treatment," which his
medical advisers recommended, might permanently
relieve him. Early in the year he accordingly pro-
ceeded to Paris to there undergo it. The relief
afforded by it, however, ultimately proved to be of a
very temporary character. Indeed the work of the
Court during the whole of the year 1900 was only
discharged by the aid of Judge Snagge and of the
present writer. This condition of matters was felt by
all parties to be really unsatisfactory. Judge Snagge
could not be expected to continue for an indefinite
period to sacrifice his entire leisure to the service of
his friend. The writer, though so far successful in his
conduct of the business of the Court that on one
occasion (November 7, 1900) the City Press was able
to kindly boast that the law administered in the
Court was still so good that no less than three of his
decisions had been affirmed on appeal within one
week, nevertheless felt himself to be in a somewhat
anomalous position. The Commissioner and his
friends all agreed in feeling that some other and more
permanent arrangement must be made for the future.

Accordingly, early in the year 1901 the Commis-
sioner arranged to take another and a prolonged
holiday, and determined that should he on his return
still find himself unequal to discharge at least the
greater portion of the work of the Court, he would

356

His Pension Finally Settled

quietly resign its judgeship. In pursuance of this
determination he remained abroad during the whole
of the spring and early summer of the year 1901.

Just previously to the Long Vacation of 1901 he
came back to London, but his health was, alas ! still
not robust. He was capable of doing a little light
work, on a day or two in each week, to the satisfaction
of the suitors, and with that great pleasure to him-
self which occupation, so far as physical strength will
permit it to be engaged in, always gives to an
active, energetic mind. But he was conscious that
such service as this would not satisfy his critics in the
Corporation. So he reluctantly permitted negotiations
to be recommenced with the Law and City Courts
Committee of the Corporation. That body was still
in a position to resume these, as a reference to them
by the Court of Common Council to answer and
report whether continuous sittings could again be
arranged for remained hitherto uncomplied with and
undischarged. In the result, the Committee agreed
to report to the Common Council that they recom-
mended that the Commissioner should be offered a
pension of ,£3,000 a year. Large as this sum
appeared it was, in truth, no more than the
Commissioner's due. The report of March, 1899,
recommended the grant, as a pension, of two-thirds
of the salaries of the judges, which amounted to
,£4,500 a year. He had for years discharged the
work of two judges ; and had, in truth, earned their
full pensions well.

The amount of the pension granted, however, was
but £"200 a year short of his full pay. Moreover,

357

Commissioner Kerr

it was given in addition to the ^300 a year of
which he was already in possession in respect of his
past services at the Old Bailey. The Commissioner
accordingly, on his part, agreed that he would accept
this pension, and offered, on the Common Council
confirming its grant, to retire at Michaelmas, 1901.

The wrench of leaving the Court where he had
worked so long was a very painful one to the old man.
To feel that his life's work is now done, and that he
has nothing left in this world but to patiently await
the end, must always be a sad and terrible thing to
any man. To a man of the deeply reflective and
religious mind of the Commissioner, we may be sure
that thoughts such as these often presented themselves.

Yet he did not murmur or complain. Once, and
only once, did a remark escape him which betrayed
how deeply he felt the parting. It had been reported
to him at the end of July, 1901, that the Court of
Common Council had adopted the Committee's report,
as they did on July 25, 1897, and that even his enemies
on the Corporation had acquiesced in it. Said he,
" Ah ! they have done it to get rid of me — and they
have too ! For I shall be like— -" and he here recalled
a late Chief Clerk in Chancery who had been his
friend in his early years. " He lived on till some fool
of a doctor told him that he must give up work, and
then he retired into Wales, and died in six months.
I think I can hold on twelve." If, even at this
eleventh hour, such a suggestion had been brought
before them by any one, the Corporation would have
been pecuniary gainers by some arrangement similar
to that not long ago made with a celebrated organist

358

Commissioner Resigns

at Leeds, and the Commissioner's life would probably
have been prolonged for many years. At Leeds,
when the famous musician grew too old to regularly
discharge his duties, he was told with much kindly
consideration, " You are still our officer, and responsible
to us for the discharge of the duties of your office :
but we have provided an assistant to aid you in
your old age, and you can have recourse to his
services whenever you like." The old servant who
was thus treated still lives. But nothing of this kind
being suggested to him, the Commissioner determined
to retire almost directly — in short, at the close of the
then coming Long Vacation.

The Press and friends talked of presenting a testi-
monial to him, and it was the general wish of the
legal profession that there should be a final farewell.
But the Commissioner would have none of these
things. Within a few days after the grant of the
pension he quietly left Town, again appointing the
writer to sit as his Deputy during August, and also at
so many Courts as were appointed for the portion of
September, which fell before the 2;th of that month.
The usual sanction to such an appointment had already
been given by the Corporation in the form which
had been employed for more than forty long years
empowering the Judge to appoint a Deputy for two
months during the year.

On the 1 8th of August, 1901, the Commissioner
formally resigned his office by a writing concluding
"this resignation to take effect as from Michaelmas
next." The letter which conveyed the resignation to
the Town Clerk of London was, singularly enough,

359

Commissioner Kerr

dated from Glasgow, where the Commissioner had
been born eighty years previously and the home of
the Alma Mater whose worthy educational son he
had been.

On September 29, 1901, the forty-two years' judge-
ship of the last elected-Judge of the ancient Sheriff's
Court of London ended, and he ceased to hold the
office to which he had been elected in 1859.

The Commissioner's resignation was accepted on
September 19, 1901. On that day week the Corpora-
tion passed a resolution to the effect that the Court of
Common Council could not allow the Commissioner's
retirement to pass without placing upon record its
sense of the excellence of the services he had rendered
during his forty-two years as Judge of the City of
London Court, and expressive of a sincere hope that
he might live long to enjoy his well-earned retire-
ment. The mover of the resolution, Mr. Lee, the
then Chairman of the Law and City Courts Com-
mittee, eulogised the Commissioner's work at the
City Court. Mr. Lile, the seconder, said that the
City would not look on the Commissioner's like
again.

The original, in illuminated form and duly signed
as an original, was directed to be sent to the Com-
missioner.

No testimonial or farewell ceremony in its Temple
had been permitted to mark the termination of the
forty years' service to justice which had been given
by the Commissioner. Yet the thoughtful care of
his only daughter secured that the once familiar
features of her father should not be forgotten in the

360

His Retirement

Court over which he had so long presided and that
they should be known to future generations.

At the same Court of Common Council as that at
which the resolution was adopted that was presented
to the Commissioner as an illuminated original, an
offer was accepted from Miss Kerr to present to the
Corporation a bust of her father. The bust was the
work of Mr. J. Nesfield Forsyth, and the Commis-
sioner had sat for it in 1897. I* nad been exhibited
at the Royal Academy and had received favourable
mention. It is now placed in the City of London
Court in a niche formed for it on the wall in the left-
hand side when looking towards the Bench. Beneath
it is an inscription stating that its subject was Judge
of the Court 1859-1901, and that the bust itself was
presented by his daughter, Miss Elizabeth Malcolm
Kerr.

Numerous newspaper paragraphs and articles about
Commissioner Kerr's characteristic methods and his
wise and witty sayings appeared so soon as it became
generally known that his retirement, which had been
many times announced as about to occur, had now
actually taken place. Indeed, hardly a newspaper of
importance in the three kingdoms was silent about
the "City Cadi" and his sayings and doings. Not a
few of the Continental papers also made mention-
more or less full — of the event. Amongst these many
interesting notices may be mentioned as particularly
interesting those which at that time appeared in
the City Press (August 7, 1901), the Daily News
(September 26, 1901), the Standard and the Daily
Telegraph (September 27, 1901). Some time subse-

361

Commissioner Kerr

quently these were supplemented by an article which
gave some further anecdotes which was contained in
Mr. T. P. O'Connor's lively little paper, M. A. P.

Many kind letters of farewell were received from
men who had been in various ways associated with
the Commissioner during his long and active career,
as well as from some of his admirers amongst the
general public. Of the first-named class of letters
the following will, it is thought, be read with interest.

Lord Brampton had, as plain " Mr. Hawkins,"
in his early days at the Bar, often appeared in the
Commissioner's Court. Later on, when a Judge and
" Sir Henry" Hawkins, attendance at the Old Bailey
had been a favourite method of discharging his judicial
duties. He wrote a kindly letter as follows :—

HOTEL SPLENDIDE,

LUGANO SUISSE,

September 29, 1901.

MY DEAR KERR, — I learn from the daily papers that on and from
this day you have determined to retire from the duties and cares of
judicial life. After a period of forty-two years absolutely devoted to
the interests of justice, during which you have ever striven with all
your strength to administer the law, so far as it permitted you, with
good sound sense according to its spirit, with strict impartiality, and
with a strict sense of duty, you have earned the rest and repose
which I trust may be yours for many a long year, with health and
vigour to enjoy them. But, like myself, I dare say you will find the
necessity for some congenial occupation.

The authorities are right in appointing two new Judges to do the
duties you discharged singly, for you did the work of two. All
health and happiness to you, and with my kindest regards and best
wishes,

Believe me, my dear Kerr,

Most truly and sincerely yours,

BRAMPTON.

362

Letters Received on Retirement

^ From Lord Alverstone, the Lord Chief Justice of
England, who had, as a junior Barrister, like Mr.
Justice Phillimore, been often before him in Admiralty
cases, he received the following letter :—

HORNTON LODGE,

PITT STREET, KENSINGTON, W.,

September 29, 1901.

DEAR COMMISSIONER, — for I can use no other name, — I cannot
allow the notice of your retirement to pass without sending you a
few lines to assure you of my hearty good wishes and my hope that
you may long live to enjoy your leisure. You will remember that
from 1868 to 1878 I was very constantly in your Court. I often
look back on those days with much pleasure. You taught me
many things, and among others I learned to appreciate the con-
spicuous activity of mind with which you got through your work
with thoroughness and judgment. I trust we may meet sometimes,
and let me again assure you of my esteem and regard.

I am faithfully yours,
R. M. Kerr, Esq., LL.D. ALVERSTONE.

The late Sir John Monckton, who had been for
many years the valued and trusted Town Clerk of
London, also addressed to the Commissioner a letter,
dated August 14, 1901, which may be read as repre-
sentative of the feelings of his brother officials towards
the oldest servant of the City, as well as expressive of
his own. It is entirely in the handwriting of the late
Town Clerk himself, and not in that of a clerk, with
merely the Town Clerk's official signature annexed
by himself. It related to certain formalities necessary
in connection with the Commissioner's pending resig-
nation, and then concluded with an expression of
" sincere personal regret at the severance of our long
colleagueship."

363

Commissioner Kerr

Shortly after the arrangements for his retirement
had been completed the Commissioner returned from
Scotland to the neighbourhood of London. During
the 1898 negotiations for the ,£2,700 a year pension
an opportunity had occurred to him of disposing of
the house in Chester Terrace, Regent's Park, in which
he had till then resided during his tenure of the
judgeship. He had embraced it and sold this house.
In its place he had gone into a small house at North-
wood as a temporary residence and depository for the
moment of such belongings he had not cared to
part with. When, on his return from Paris, he found
that in his absence the obnoxious condition that to
obtain his pension he must retire within twelve
months had been annexed to the grant of it, he
continued to reside in this small house pending a
more satisfactory settlement. It still was his only
fixed place of residence when his retirement did
actually take place at Michaelmas, 1901.

There, in retirement, he amused himself in going
over his papers, and in inserting prints in editions
of such books as he considered to be worthy of the
trouble. In journeys to London, which were frequent
with him, he maintained his familiarity with well-
known shops for " picking up " old engravings and
"curios," or possibly now and then a good picture.
At all times in his life the Commissioner had taken
great interest in archaeology, and often while on
holiday was engaged in some quaint, old-world town
on the Continent. After his retirement, Continental
trips were still often enjoyed by him, and journeys
to his native town and to the neighbourhood of the

364

His Occupations in Retirement

original home of his family in Ayrshire were not
infrequent, and a great delight to him.

No member of his family permanently resided with
him, nor did he take up his abode permanently with
either of them. They had made domestic arrange-
ments of their own which they could not well break
up. He frequently, however, visited his only
daughter in the Isle of Wight, where she had made a
home for herself; and she, on the other hand, visited
her father at Northwood. There he had the comfort
of a faithful housekeeper and companion in the person
of a widow lady, who attended to him with care as
great as an affectionate daughter could have bestowed
on him, alike when that daughter and other members
of his family were around him, or in their absence.
Her devoted services to the Commissioner have, it
is pleasing to record, been since his death handsomely
and substantially recognised by his family, in accord-
ance with the last wishes of the Commissioner, he
having been content to die intestate after disposing of
the bulk of his property by making provision in his
lifetime for the claims of relatives and others upon him.

Many a pleasant hour has the writer spent in this
house, chatting with the Commissioner on matters of
common interest alike to the latter and to himself.
The Commissioner was a most agreeable companion,
and took a keen interest in every subject engaging
the attention of the day, as well as in " Law." Tales
with a touch of humour in them greatly delighted him
down to the last of these visits.

This occurred at the end of August, 1902. The
writer left Town for a distant visit in the Lake

365

Commissioner Kerr

Country, and on his return after a fortnight's absence
felt a little uneasy about the Commissioner. A
magazine article, in which, as they had discussed it
together, he knew that the latter took great interest,
was returned without remark. This was a most un-
usual occurrence since the Commissioner used never to
hesitate to emphatically express either high approval or
dissent. Moreover, a half-formed plan that they were
to go together to enjoy a day's trawling in a quiet
half-town half-village in Essex passed unnoticed. To
write to the Commissioner to " remind " him, or to go
down to lunch with him, as was the usual visit, or
even to go and see him without some sort of hint that
to drop in would not be unwelcome, would be distaste-
ful to him. It was one of his peculiarities that he
never would send any one (unless he particularly
disliked them, and so felt bound to be formal) an
invitation couched in the language usual with most
people, and that he resented what he regarded as intru-
sion, more particularly if he were unwell. Presently a
broad hint to stop away for the present arrived from
the Commissioner. It was in the shape of a letter
dated on 7th November from the lady before referred
to, and written by her by the desire, if not at the
dictation of the Commissioner, and stated that he was
confined to the house by a very bad headache, but
when he was better would be glad to see the present
writer at lunch whenever he could come down. This,
really of course, meant do not come just now. The
writer did not obtrude himself, but felt uneasy.
Within a fortnight the news reached him that
his dear old friend the Commissioner was dead.

366

Sudden Collapse and Death

After the letter he had grown worse and death had
occurred within the period named.

As with many a strong man before him, the collapse
had at last come suddenly. A great failing had come
upon him not long after his return from his autumn
visit to Scotland ; his strength had very perceptibly
and painfully grown less ; a slight paralytic stroke had
fallen upon him, and within a day or two the end had
peacefully come on Friday, November 21, 1902.

Thus he had died, not, indeed, within the year
which he had named in the one murmur which he had
given expression to in the writer's hearing as likely to
be the limit of his life, but about seven weeks after its
close.

The death, even in retirement, of one who had till
so recently filled such a prominent place in the eyes
of the public, and whose words had till lately been in
the ears of the world, did not pass unnoticed. The
press throughout the kingdom remarked it and wrote
upon it.

Appreciative mentions of the late Commissioner of
course were made in the Court, whose judgment-seat
he had so long filled. We learn the following from
the City Press of November 26, 1902 :—

At the sitting of the City of London Court on Monday, Judge
Rentoul, K.C., in referring to the death of Commissioner Kerr (the
public standing the while), said : Since this Court last met the late
Judge of the Court has, as we know, passed away. It would be
wrong for this Court to meet without taking notice of that fact. For
forty-two years he sat here, and gained for himself a very high repu-
tation. The Lord Chief Justice, when he was receiving the Lord
Mayor, thirteen months ago, on the first occasion on which Judge
Lumley Smith and myself attended with the Corporation as Judges

367

Commissioner Kerr

of this Court, referred to the late Judge in terms of high eulogy, and
said he hoped that the two men who were appointed to take his
place would preserve the high traditions which the Court had
previously gained. Well, the late Commissioner was, as we know,
and as the members of the Bar can appreciate, undoubtedly a great
and a profound lawyer. He was nearly the oldest servant of the
Corporation of London. He had seen all the high officers who
started with him at the beginning of his career pass away. I did
not know the Commissioner privately. I only knew him through
practising occasionally before him in this Court. By those who
knew him privately, and most intimately, I am told that it was
in that capacity that they liked him best, and the longer they knew
him the more they liked him. His rapidity of decision in Court
was undoubtedly unequalled on any Bench in this country. In
spite of that rapidity his decisions were remarkably correct.
Probably few Judges were more frequently absolutely right in the
opinion of those advocates and Counsel against whom for the time
being he decided. His desire to do justice was admitted by all, and
his great sympathy with the poor was known to all who had any
connection with this Court, or who read the proceedings of the
Court. His manner was, as we know, a little brusque, and some-
times he was a little severe on the advocates who appeared before
him ; but it was remarkable that he never bore malice — even where
advocates were tempted to reply in coin such as they had received
from the Bench. His life was a singularly successful one, as we
know, and there was one characteristic that we all must especially
admire — and that was the kindness and sympathy that he felt
towards his own fellow-countrymen. A man can be perfectly just
and impartial in his dealings between man and man, and at the
same time can bear tender feelings towards that land to which he
happens to belong, and where he spent the brightest and finest part
of his life — his boyhood. The late Commissioner's sympathy and
kindness towards his fellow-countrymen were well-known throughout
this City. His death has very little of the sadness and pathos that
attaches to many a death, because it comes at the close of a long,
successful, and healthy life. His life was distinctly a success from
all points of view. It would be idle to say that he might not some-
times have carried his very virtues to excess — that his desire for
speed might not sometimes have led litigants to feel that they would
like their cases to have been heard at a little greater length. There

368

Appreciations Spoken at City Court

is no Judge who has not been criticised, and there will be no Judge
who will not be criticised for his decisions. Probably the late
Commissioner escaped criticism as much as any of us are likely to
do. All that we can say now that he has passed away is that it
should be the desire of every man occupying any judicial office
in this country to stand at the end of a long career as high in the
public estimation as the late Commissioner.

Mr. F. A. Wootten, the senior member of the Bar present, said
he could speak from personal experience of the late Commissioner.
He could safely say that the watchword of the late Judge was
" Efficiency throughout." He was a strong Judge, and a strong
man ; and certainly was no respecter of persons. He undoubtedly
gained the universal respect of every one who practised before him,
and he did not think he would be saying too much if he added that
he won for himself their affection and esteem.

Mr. George Mitchell (who represents the Registrar in the Judge's
Court) remarked that, after serving at the Court for thirty years
under the late Commissioner, he entertained for him a feeling of
respect and regard — and, he might add, affection.

Mr. J. E. Sly (the High Bailiff) felt that he could speak as a
personal friend of the late Commissioner. He wished to say that
he had always found him most kindly and thoughtful in all that
he did. His (the speaker's) knowledge of the late Judge's care-
fulness in looking after the interests of those whom he thought
were in the right was very great, and it added considerably to
their admiration of him.

Judge Rentoul added that he was very pleased to receive the
testimony of Mr. Mitchell and Mr. Sly, who had had exceptional
opportunities of knowing the Commissioner. He thought that it
would not be out of place if a short message of condolence, or
a vote of sympathy, were sent to the Commissioner's daughter and
his sons. It would be signed by the Judges and by all the officials
of the Court who desired to put their names to it.

On taking his seat in Court yesterday, in the absence of the
Registrar, who was attending the funeral of the late Commissioner,
the Assistant Registrar (Mr. E. B. Tattershall) said : I think this is
a fitting opportunity for paying a tribute of respect to the memory
of the late Judge, and for expressing the sense of regret experienced
by the officials of this Court on hearing of his decease. Although

369 2B

Commissioner Kerr

he had ceased to be our chief for some time before his death,
his memory is still green, and it seems difficult to realise that he
has ceased to preside here for more than a year. The Commis-
sioner was a remarkable man in many ways. He was no respecter
of persons — an attitude of mind which is highly desirable in a
Judge. Sometimes severe, and on occasions a hard-hitter, as some
of you may remember, his brusqueness and assumed severity con-
cealed a really kind heart, and a sincere desire to do justice and
right to all. There can be no second opinion as to his great
abilities. They were undeniably great. His knowledge of law, his
common sense, and his ready grasp of material points in a case,
together with his profound knowledge of human nature, and the
celerity with which he conducted the business of the Court, ren-
dered him more or less of a marvel to those who listened to him.
I venture to think that his memory will not easily fade, and that
our recollections of him will not be unkindly ones. I am sure
you will join with me in expressing deep sorrow and regret that
he has now gone from amongst us.

Mr. T. H. Aldous, solicitor, in reply, said he fully concurred in
the expressions of opinion that had fallen from the Assistant
Registrar. He (Mr. Aldous) wished to testify to the unvarying
kindness and courtesy he had always experienced at the hands of
the late Judge.

On Tuesday, November 25, 1902, the late Commis-
sioner was being laid to rest in Northwood Cemetery,
close to his intimate friend and medical attendant, the
late Dr. Lennox Browne. The death of the latter
a few weeks before his own had doubtless somewhat
hastened the former's own end. While the funeral
service at Northwood was in progress, a memorial
service was simultaneously held at the church of St.
Lawrence Jewry.

An appropriate and eloquent address was given on
the occasion by the Rector. His striking words then
spoken well described the Commissioner's character.

370

Appreciation by City Rector

And this is the more remarkable seeing that no
intimate acquaintance ever existed between them.

An excellent report of the impressive service, and
of the admirable address delivered by the Rector of
St. Lawrence Jewry, was contained in the City Press
of November 26, 1902, and is well worth recording
here. It spoke thus : —

Simultaneously with the interment, a memorial service was held
at the church of St. Lawrence Jewry. Amongst those present were :
Mr. Julian Hill and Mrs. Hill (sister of the late Judge), his Honour
Judge Lumley Smith, K.C., Mr. G. Pitt-Lewis, K.C. (who sat as the
late Judge's deputy for some years), Alderman Sir H. D. Davies,
M.P., Mr. Alderman Alliston, Sir Homewood Crawford (City
Solicitor), Mr. W. H. Thomas, C.C., Mr. Myer B. Lee, Mr.
A. M. Sly, Mr. E. B. Tattershall (Assistant Registrar of the City
of London Court), Mr. G. J. Mitchell (Clerk of the Judge's Court),
Mr. G. Cooper (the Superintending Clerk), Mr. Maynard, Mr.
Mattison, Mr. Taylor, Mr. Phillips, Mr. Claridge, Mr. Mordin,
Mr. Marnham, Mr. Rowe, Mr. J. Murdoch, Mr. Gyatt, Mr.
Lynden, Mr. Bonus, Mr. Ford, and Mr. H. A. Grover (the official
shorthand-writer). The legal profession practising at the Court was
represented by Mr. J. J. Cooper Wyld, Mr. Mallinson, Mr. J. H.
Welfare, and Mr. T. H. Aldous. After an appropriate funeral hymn
had been sung, the Rev. J. Stephen Barrass, the rector, read a
portion of the Burial Service. Addressing the congregation, he
said : We have met together upon a solemn occasion. Life is full
of solemnity. Death has taken from us one who for well towards
half a century (forty-two years, to be exact) has played a prominent
part in the administration of justice in the City of London. Robert
Malcolm Kerr was no ordinary individual. As a man he was
characterised by plain, straightforward, and blunt honesty. He
was well read, thoughtful, and deeply religious. He was genial
withal, and gifted with a deep vein of pawky Scottish humour,
which made him at all times one of the most charming companions.
As a Judge he will long be remembered. In his administration
of justice he showed both deep learning and profound practical
wisdom. He was ever impatient of red-tape. For legal fictions
he had no mercy. The hampering technicalities of the law were

371

Commissioner Kerr

never allowed to thwart his purpose, or warp his judgment. He
had the gift of grasping the real point at issue, and to that he
would bring the litigants almost at the point of the bayonet.
He dealt out justice with a strong hand, a firm will, and a clear
conscience. He was not to be hoodwinked by the insinuating
innocence of the Dodson and Fogg's, or cajoled by the high falutin
oratory of the lineal descendants of Serjeant Buzfuz in the legal
profession. To all honest lawyers he was ever courteous and most
scrupulously fair. In that Court in which he sat for forty-two years
he was known, feared, and loved as a strong man. He was no
respecter of persons, but was always a good friend to the poor.
He had the happy knack of saying smart and crystallising things.
His obiter dicta in this respect would make a rare volume of
proverbial philosophy. The world is all the richer for the lives
of such men, and in these days of respectable mediocrity we are
the more indebted for the great and good life lived among us.
He has gone to stand before his Judge — the Judge before whom
we must all go. Grant that we may so live that when we appear
we may earn the " Well done, good and faithful servant, enter thou
into the joy of thy Lord." The playing of Chopin's Funeral March
by Mr. Kingdon brought the service to a close.

Appreciations, at once so ample and so accurate as
those set out above, leave little to be added, even by
one who had known the late Commissioner Kerr well
for over thirty years, and had stood towards him in
relationships which often lead to friction between men
who have no sympathy of feeling with each other,
because, each failing to understand the other, each
suspects the other of a wish to treat him with less
than justice. During the mid-career of the Com-
missioner the writer had for many years been his
Tenant in Chambers. During its closing years, he
long acted as his Deputy. Never during the whole
period did there arise between them the smallest
misunderstanding or friction, at any time or on any

372

Summary of Work and Character

subject. The credit for this is by no means wholly due
to the younger man, though he had early, and as a
very young man, learnt to value the kindness with
which the late Commissioner regarded a very Junior
Barrister, almost friendless in London, and with his
way in the world to make, and the assistance which
he was ever ready to render him in a thousand little
ways. He had learnt, too, to trust with the most
entire confidence in his absolute sense of justice, and
to know that, if he at times appeared harsh or even
brusque, he was actuated by a stern sense of his duty
to treat all men with unbending and impartial justice.

The shrewd observation made by Judge Rentoul is
the more remarkable because that Judge did not
personally know the subject of his criticism. Yet
he spoke the exact truth when he said that the
Commissioner " sometimes carried his very virtues to
excess." This was especially true of his work in
Court. As Lord Brampton in his kind letter truly
said, he was for years doing the work of two men, and
the pressure of business before him often absolutely
necessitated the exercise by him of that wonderful
faculty which he possessed of characteristically grasp-
ing " the point " of a case long before an ordinary mind
had even seized on what were the material facts in
their due order. Yet it cannot be denied that this
very faculty at times led the Commissioner to forget
or to ignore the great principle promulgated by Ben-
tham, whose disciple and follower he, in his main
views, was. That great jurist declared paradoxically,
"That justice should seem to be done, is better even
than that it should be actually done." That it almost

373

Commissioner Kerr

always was actually done in Kerr's Court, and that
in a far higher percentage of cases than in Courts
presided over by painstaking men far less rapid in
their methods, many years' observation enables the
writer to be very confident. That it always seemed
to be done cannot be affirmed, alas ! The observation
that his acts were not always what they seemed may
be justly extended to the Commissioner's whole life.
Sternly resolved to obtain that strict justice which was
his ideal, whether he was seeking it for others or
for himself, he rushed towards its attainment with an
impetuosity that often did injustice to himself and to
his really kindly nature, and in a manner which some-
times rendered him not sufficiently thoughtful of the
feelings of other and weaker men. Intentionally, he
would hurt the feelings of no man ; in his anxiety to
reach the justice which was ever his aim, he would
sometimes thoughtlessly trample on the feelings of
those whom he believed to be standing in the way of
its attainment.

" Be just and fear not " was, in truth, the aim of his
long life. Rightly was it said by Mr. Barrass, the
Rector of St. Lawrence Jewry, that he was "well
read, thoughtful, and deeply religious," and that uhe
dealt out justice with a strong hand, a firm will, and a
clear conscience." Ever mindful of the end of all
human life, he always tried to keep steadily before his
mind, alike on the judgment seat, and throughout life,
as he did before his eyes at the desk where he was,
when out of Court, largely occupied with his pen, the
motto —

toujourg a ia fin/'

374

APPENDICES

APPENDIX A

JUDGE'S SALARY AND JUDGE'S FEES RECEIVED BY THE
CORPORATION IN EACH YEAR

JUDGE'S SALARY.

JUDGE'S FEES.

1859

450 (

1860

900

1861

900

1862

900

1863

900

1864

900

1865
1866

975]

1,200 >

1867

1,200 )

1868

1, 800

1869

2,OOO

1870

2,OOO

1871

2,000

1872

2,000

1873

2,000

1874

2,100

1875

2,100

1876

2,100

1877

2,100

1878

2,100

1879

2,100

1880

2,100

1881

2,100

1882

2,100

1883

2,100

1884

2,100

under
Equity
Act.

5,390

5,883

6,421

6,553
6,673
6,579
6,525
6,755

Estimated
as various

fees

abolished
in 1860.

969 (estimated)
2,005 "
2,376
2,449

2,379
2,376

2,200
2,378
2,607

3,737
4,550
3,664
3,665
3,639
3,694
4,003
4,869

375

Appendix A

JUDGE'S FEES.
JC>

7,121
6,624

6,794
6,647
7,048

7,751

8,576

9,286

9,708

10,837

10,301

In each of these years ^3,200 profit
made by the Corporation.2

1 N.B. — The figures for these years are not contained in the
original return, but have been added by the late Commissioner Kerr,
in his own hand, to his copy of such return. — ED.

2 A note to this effect, in the late Commissioner's own hand, is
contained in his copy of this return. — ED.

376

APPENDIX B

TOTAL SUITORS' FEES LEVIED IN EACH YEAR, AND ANNUAL
INCREASES THEREON

1889 TO 1894.

NO. OF

AMOUNT

ACTIONS.

SUED FOR.

£

1889

18,285

150,838

1890

29,197

160,625

1891

3I.792

184,577

1892

32,382

!97,343

1893

34,880

201,881

1894

38,680

221,271

1895

39,127

219,758

1896

1897

1898

1899

1900

FEES

INCREASE

LEVIED.

OVER 1889.

£

14,839

16,319

1,480

18,055

3,216

19,551

4,712

20,439

5,600

22,814

7,975

21,687

6,848

19,917
19,292
19,670
18,879
18,758

The figures from 1895 given here are given as corrected by the
late Commissioner Kerr in his own hand to his copy of it.

The figures for these years have been added, and subsequently
corrected in his own hand, by the late Commissioner in his copy of
his return.

As to the fees of the Court previously to the date at which this
return is commenced, the following is contained in the City Press,
June 27, 1868: —

"The total sum levied as Court Fees from the suitors was, in the
first year, £4,146; the amount of fees levied in the last year,
exclusive of Equity fees, but including the fees of the new jurisdiction
since ist January last, was ^6,148. Of these fees the proportion to

377

Appendix B

which the Judge would be entitled, were he not paid by a salary, was
in the first year £1,214, and in the last year .£1,935."

The return was " for the first nine years during which the present
Judge has held office." It was remarked that "these facts and
figures speak for themselves."

378

APPENDIX C
THE REGULATIONS WHICH GOVERNED CLIFFORD'S INN

These are the Statutes and Ordinances for the good and honour-
able government of the ... and in the Chancell or lane made to be
held and kept . . . Clyffordes Inne the ... year of the reign of
King Henry the Seventh in the time of ... Holland then the
Principal, and . . . newly written in the twentieth year of King
Henry the Eighth, Hugh Goodman serjeant Principal.

1. First, it is ordained and established that each companion who
enters therein to dwell there shall pay at his first entry 4od. for his
gaudes and for his reception, to the Principal.

2. Also, it is ordained and established that each companion who
departed out of the town and is in arrear of any whole commons,
half-commons, battels, repasts, forfeitures, or any other duties, and
has not any other companion held to make settlement for him with
the said Steward or the Principal on the Saturday for the accompts
of the said duties thus in arrear, shall pay fine before that he enters
in arrear in the commons or pension, that is to say, for the first time,
6d. in addition to the said duties, and for the second time, i2d.,
and for the third time, 4od., and then he shall be thrust and put out
of the commons, company and pension roll for ever, provided always
that his goods and chattels being within the said Hostal be first of
all distrained and retained until the said duties be fully paid.

3. Also, It is ordained and established that each Steward shall
fully pay to the Principal for penalty and service on the next follow-
ing [blank] or on the Monday at the Meal at latest after his week
under penalty of 6s. 8d. to be paid at the choice of the Company.
And, further, he shall be answerable for each whole commoner and
half-commoner, who is in arrears of the whole commons or half-

379

Appendix C

commons, unless he have them and their names read openly bound
and shewn at the accompts for the common profit, And also he
shall be answerable for the arrear commons, battels and all manner
of forfeitures lost, unless he has duly laid before the Principal the
book of his accompts the said morrow before ... or Monday before
noon at the latest, together with the names of those who are thus in
arrear.

4. Also the said Steward shall keep for his time all the cloths,
linens of the buttery, hampers, salts and other things necessary to

the said buttery appertaining, and surrender them to

the next Steward on the Saturday next after his
lnButteryhe accompt, so safely as he received them, under penalty

of paying double value to the use of the Company for
each thing by his default or negligence lost or impaired. And if
any default be found in any Steward or his deputy in the ordering
of the victuals, concealment of the common profits of the statutes
and ordinances of the said hostel openly broken or any other thing
whatever, or that he be more favourable in service to one companion
than to another, or incurs any waste against the common profit, he
shall pay to the said Company 6d. ; and further, if it appears right,
by the advice of the Principal and those of his council. And also,

he shall be held to close the gates, that is to say — in
F°heCGat2.of summer between nine and ten, and in winter at nine

o'clock in the night under penalty of paying to the use
of the Company 6d. for each default that he commits. And also it
is ordained that the Company be at meal (dinner) in time of harm
at twelve o'clock, and at eleven o'clock in the vacation, and at supper
always at six o'clock.

5. Also it is ordained that every companion who delays and stops

the cloth on the table at the dinner or supper aforesaid
Fthedciothng °f or at tne supper with the Steward each time shall pay a

farthing And if he comes to the dinner or supper
after the Steward has duly dined or supped he shall pay each
time id.

6. Also, it is ordained that each companion of the said hostel,
as well he who is not assigned to any chamber therein, as he who

is assigned to certain chamber therein, shall be Steward
WsteSSS.be for a11 the Company according to the coming of his
turn, provided always that he may be excused for 1 2d.
to be paid to the use of the Company, if he will.

380

Regulations Governing Clifford's Inn

7. Also, it is ordained that if any companion of the said hostel
be in the Steward's book on the Saturday for buttals or for a
farthing's forfeit he shall be charged a halfpenny, without any
reward (return) thereof to be had afterwards of the said Company,
etc.

8. Also if any companion make a disturbance in time of the " der

p tyme " to wit, of grace, of examination of briefs, declara-

Disturbance of *

the grace or tion of the aptur, or court baron, or bring any stranger
to the hatch of the buttary in the time of the dinner or
supper for drinking, he shall pay each time, 6d.

9. Also, it is ordained that all those who enter into the aforesaid
hostel with intention of valuing it (?) according to the custom, and

afterwards occupy themselves with divers other occupa-
be oVTh^iSteL tions, not honorable nor in accordance with the good

government, but plainly to the injury of the said hostel,
be utterly voided and put out of it.

10. Also, it is ordained and established that from henceforth no

companion shall be received to remain within that hostel
shaiHind two" without he shall first of all find two sufficient com-
panions of the same hostel to answer for all his duties
if any thereof from henceforth be in arrest therein.

11. Also, whatever companion talks . . . or ribaldry with good
That no one deliberation and intention within the Hall at the time
talk ribaldry. of the dinner or of the support, he shall pay for each

word one farthing, et cetera.

12. Also, it is ordained and established by the Principal and his

council, that any companion of the said hostel, to wit,
Les*!bjectshe of the pension of three shillings yearly, being of the
said Company by the space of one year at least, shall
bear all the scholarships of this hostel for his proper turn.

13. Also, it is ordained and established, that if any companion
enters into ( ) chamber and does anything or says anything therein

whereby those of the chamber be in any (way) dis-
Thteheci? S in turbed by him who thus enters, he shall pay each time

one penny. And also that no companion be (allowed)
to be lodged in any chamber except by the assignment of the
Principal.

14. Also, it is ordained that if any companion make or disturb
the cloth within the said hostel with any of his companions, he shall
pay for each time sixpence. And if he fight with fist or cudgel,

Appendix C

knife or dagger or any other thing without effusion of blood, he
shall pay each time twelve pence, and shall make amends to the
party by the discretion of the Principal, &c., and shall pay to the
Company six shillings and eightpence, and forthwith leave the
hostel.

15. Also, it is ordained and agreed that each companion of the
said hostel who (carries) procures and takes any other companion

of the same hostel to go with him out of the said hostel
prhoacu"e°any to help him to avenge himself upon any strange man or
gTShTim'to companion of the said hostel, for any old or new dis-
maketionnten agreement, malice, and contention between them pend-
ing, shall pay to the use of the Company six shillings
and eightpence And he thus wantonly consents to go with him in
the manner above said shall pay forty pence. And the one as well
as the other shall forthwith leave the hostel.

1 6. Also, it is agreed that each Steward of the said hostel for the
time being shall enter and write in his book all the defaults and

errors made and committed by any companion of that
Tshau prSesentrd hostel against the statutes and ordinances thereof
an defaults. (while) he is steward, and also shall write all the names
of those companions who cause the gates or gate of the said hostel
to be opened, after that they are duly . . . closed and locked, so
that on the Wednesday night the Principal and all the Company may
be openly apprised and informed of the same defaults, errors, and
names, to be (rightly) adjudged according to the custom of the said
hostel under penalty of twelve pence to be paid by the said Steward
to the said Company as soon afterwards as they are perceived and
known.

17. Also, it is ordained that each companion of the said hostel
shall pay to the said Principal thirteen pence for vessels of pewter

And also that he have in the kitchen (?) one plate and
^ayafo? veeie?s! one saucer of pewter, ready for his use every day under

penalty of one farthing to be paid at the will of the
Company . . . every day that he is in arrear.

1 8. Also it is ordained that each companion who breaks or causes
to be opened by design or ... the hatch of the Buttery against

, . , . the will of the Steward for the time being, shall pay

For breaking . r *

the hatch of the first time at the will of the Company twelve pence,

the Buttery. , .„. ^ 3 ,

and on the second time two shillings, and on the third
time forty pence and forthwith leave the hostel.

382

Regulations Governing Clifford's Inn

For opening X9- Also that the penalty be levied on those who

°f thatf eat Dreak the great gate or (cause it to be opened) against

the form of the Statutes thereof made, etc.

20. Also it is provided and agreed by the advice of all the
council of the same hostel . . . assembled on the feast of

St. Martin in the tenth year of Edward the Fourth
ofFthe SSi. • • • after tne feast of Christmas then next ensuing

for ever thereafter that if any companion of the same
hostel be elected to the office of the marshal constable or steward
. . . Christmas, and refuses that office and will not take it upon
himself but utterly refuses it he shall be fined in the sum of twenty
shillings And also that all the companions of the same hostel,
commoners or non-commoners, excepting those who are of the great
council of the same hostel, being in town at the time of the election
of the said officers, upon due warning by the Principal, one under
his commands, to them made, are held to be liable to the said
offices according to the discretion of the Principal and those of his
council, and chargeable to the said offices under penalty aforesaid.

21. Also, whosoever misbehaves himself out of the said hostel in
any wise . . . the said hostel is disgracefully scandalised, he shall

pay for the first time to the use of the said Company
For scandalising forty pence and forthwith leave the hostel, until he has

of the hostel ' f ,

or ... any permission of the Principal and all the said Company
w£Sann to return thither And on the second time he shall
pay in the same manner six shillings and eight pence,
and forthwith leave the said hostel for ever And also (if) any
companion shall either carry in or ... therein any common
woman and woman of ill fame he shall pay for each time . . .
to the company six shillings and eight pence, and on the third time
he shall leave the hostel for ever. . . . Conveyers in or out, or be
in company or knowledge thereof, and do not show or discover
them to the Principal and council of the said hostel have the same
penalty, etc.

22. Also, it is established and ordained by the Principal and his
council that each companion of the said hostel to wit as well of the
common pension as of the pension of " half a mark," being in the
City and ... St. Pauls and Temple Bar shall be in commons except
reasonable and necessary cause . . . deputy or his council.

23. Also it is ordained and established that if any companion of
the said hostel play at tennis, or dice tables, cards, or pique, or

383

Appendix C

tables, or grates, or other metal or quoits or other unsuitable
game therein or without privity or openly in any time
Tennis and of the year or in time of Christmas or Candlemas
without the permission of the Principal and all of his
council, he shall pay for the first time to the use of the said Com-
pany twelve pence, and for the second time forty pence, and the
third time six shillings and eight pence, and forthwith leave the
hostel for ever Provided always that the game of tables for
the amusement of the companions in an honest manner and suit-
able time may be used, so that no gain of gold nor silver or other
thing of the value of one farthing, privily or openly by device or
deceit be thereof taken in any manner under the penalty above
said.

24. Also, it is ordained that the game called " Newefaire " be not

used within the said hostel under penalty of forfeiture

Newefaire. . • • • • •.

of the thing thus put in the said game or the value
thereof to the use of the Company, etc.

25. Also whereas the said hostel is greatly scandalised and the
Principal and many companions thereof have been shamefully

That no thing reproved for many various things and profits of
or ... be put divers companions privily put in mortgage and some-
times by sublety and wicked deceit lost or sold to
certain companions of the said hostel to the great damage of the
parents and friends of the said companions thus putting their profit
into mortgage, It is ordained and established that from henceforth
if any such thing or profit of any companion of the said hostel be
put into mortgage to another companion of the same hostel or any
other man or woman by covin or deceipt in his name for his use
and profit upon a certain day that within two days after the said day
appointed and returned he who has the said thing or profit is to
come to the Principal of the said hostel and declare openly how and
in what manner the said thing or profit was delivered to them, and
then remain at the ordinance of the said Principal and those of his
council upon penalty of the forfeiture of the thing or profit put in
Mortgage or the value thereof.

26. Also, it is ordained and agreed that if any companion of the
That no one sa^ hostel who lends to another companion of the
tafkoer money same hostel gold or silver (and) thereof takes usury

for advantage of that loan, for the first time he shall pay
to the use of the said Company the said advantage thus by usury

384

Regulations Governing Clifford's Inn

acquired and on the second time three times the value and forthwith
leave the hostel And if anything or profit by any companion of
the said hostel be privily by fraud or wicked device sold within the
said hostel or without to another companion of the same hostel, it
is agreed that the aforesaid sale and purchase be not so affirmed and
established, but that it shall be replaced and restored back again to
the party by the ordinances of the said Principal and those of his
council, if he who had thus sold it, or his friends will therefor make
plaint and demand remedy afterwards, upon penalty of leaving the
hostel to be laid upon him who openly refuses to do so.

27. Also, it is ordained that if any companion of the said hostel
receive retain or bring within the said hostel any dog called grey-
hound, greybitch, spaniel, or mastiff, he shall pay for

0fFGreySnl the nrst time to the Company forty pence, and on the
second time six shillings and eight pence and forthwith
leave the hostel.

28. Also if any companion draw within the said hostel any knife

dagger or sword by way of cutting or playing or if he
b!i5jankni£ write upon the tables in the Hall he shall pay each
time one penny to the Company, etc.

29. Also it is ordained and agreed that if any companion of the
said hostel do damage in the gardens or take herbage or fruit away

That no one therefrom, or if he take privily or openly fruit growing

do damage in therein, without permission of the Principal abovesaid,

and assent of all the company, he shall pay for the

first time six pence, the second time twelve pence, the third time

twenty pence, the fourth time forty pence.

30. Also if any companion of the said hostel be often accustomed
to go forth from the said hostel after nine of the clock of the night

or returning thither after that time that the gates be
FSe5SS duly snut anc* locked and this in continuance for many
weeks he shall pay for the first time twelve pence, for
the second time forty pence, and forthwith leave the hostel.

31. Also, each pensioner shall pay his pension in the week after

that the pension be set upon penalty of six pence
0f'thePpS£. beyond the pension to be paid at the will of the said
Company.

32. Also it is ordained and agreed that each companion of the
said hostel who has promised the Principal and undertaken upon
his entry to be governed according to the ordinance of the said

385 2C

Appendix C

Principal and the effect and form of the statutes and customs of

That no one tne sa^ nostel for the time that he be therein, and

be disobedient afterwards set himself to disagree with the said under-

to the Statute.

taking and be rebellious against the ordinance of the
said Principal and those of his council, or against the said statutes
and ordinances, nor will undertake to perform that which forthwith
may be made parcel thereof, leave the hostel, provided always
that his profits be first seized and held until all his duties and
forfeitures be fully paid if any be in arrear.

33. Also, it is agreed that henceforth each companion of the said
hostel, who frequently or customarily brings to the hatch of the
buttery any stranger man or companion not a commoner, to drink at
the time of the learning in the hall, or if he causes the steward to
open the said hatch in any other time not reasonable, shall pay each
time for each hanap (i.e., flagon) two pence, and more if it seems
good to the steward.

34. Also it is ordained by all the council of the said hostel that if
any one of the said hostel have any contrary words with the Principal
or his deputy or any companion sitting at the compter or in any other
place within the said hostel, that then it shall be lawful for the
Principal or his deputy and his counsel then being present to put
such companion out of the commons and pension, if he please, and
. . . the said offender be fined according to the discretion of the
Principal or his deputy and his council.

35. Also it is ordained and agreed that from henceforth each
companion of the said hostel being at their meals, to wit dinners or

suppers in any half week of the year shall be accompted
^ommo^s! in tne Saturday at the accompter full commoner at the

least and come to their repasts And this at the choice
of the Principal and his Company for each time being. And also
that each companion of the same hostel being out of commons and
staying and lying within the view or in the town of London or the
suburbs thereof for the space of two days more shall be accompted
and reckoned on the Saturday then next following at the accompts
half commoner at the least by the discretion of the Principal and
those of his council And if common pensioner be two nights and
noble pensioner three nights in the said hostel he shall be half
commoner.

36. Also it is agreed and established that no companion of the
said hostel receive any person to be lodged in his chambers who has

386

Regulations Governing Clifford's Inn

been put out of the said hostel by the Principal or those of his

That one put counciL And if ^y one do this he shall pay to the use

Oush°aiithnothbetel Of the ComPany six shillings and eight pence, and

lodged therein, forthwith leave the hostel, And also that no companion

of the said hostel who is put out of the commons once,

: lodged within the said hostel until he has permission of the

Principal and those of his council for his return thither under penalty

for each night twelve pence to be paid to the use of the Company

before his return to the hostel.

37. Also, it is ordained that no companion of the said hostel
ought to make any construction or argument of the said rules or any

That no com- °f them or any point contrary to the Principal and his
'£ council, nor disturbance or contradiction of the good
rule or ordinances of the said hostel, whereby any
companion presumes to be of ill government by means
of the said construction in any point, under penalty of three shillings
and four pence ; but the construction of the said statutes shall be
always referred to the said Principal and those of his council.

38. Also, it is ordained that no companion of this hostel shall do
For those who any damage nor cause any other one to do damage by
d<thts Table to any manner of way to the rules and statutes before

said in any point nor remove the said rules under
penalty for each default of six shillings and eight pence.

39. Also, it is agreed and ordained that no companion of that
hostel imagine or compass the deposition or the removal of the
Principal or of the reader of the same hostel without the assent of
those of the council of the said hostel under penalty of leaving the
said hostel for ever And if after such deposition any election be
made without the assent of those of the said council that all these
elections be utterly void and held for nought And also that each
companion of the same hostel who in any manner abets, procures,
aids, or assists the same offences before said incurs the same
penalty.

40. Also, it is provided and agreed that if any common pensioner
being in commons and lying in the same hostel, be absent from a

reading of writ, he shall lose one farthing, and a lecture
TieLnfng°r one halfpenny to the use of the company. And also if

any scholarship (?) to wit, with reading motion, or
report be lost by their default, he who is in default shall pay for a
writ sixpence, for a motion in term time twenty pence, for a report

387

Appendix C

sixpence, and for a motion in vacation time three shillings and
four pence. And all the forfeitures shall be to the use of the
Company, etc.

41. Also, it is provided and agreed that no companion of that
hostel nor any stranger play at any game, to wit, dice, tables, or

cards, within that same hostel at Christmas time, nor

ror playing. . .

without, under penalty of each companion acting
against this regulation forfeiting for each time thus offending six
shillings and eight pence at the will of the same hostel.

42. Also, it is agreed that if any companion of that hostel rebel
against this ordinance or absent himself from the commons for that
cause, that the Principal admonish him out of the commons.

43. Also, it is agreed that at Christmas time the Steward at the
end of each week as at other times of the year shall be changed.

44. Also, it is provided that each companion who shall be
admitted within the said hostel, as well those who shall be admitted
by the name of the common pensioner as those by the name of the
noble pensioner, be held to be present and in commons on the two
feasts of Christmas next after their admittance, under penalty of six
and eight pence for each one of the said feasts which is not thus
observed, etc.

45. Also, he who is once received for commoner shall be always
called commoner if he be in town until he is duly warned of the

Steward for the time being, or of the Principal, of his
Thco1nmone" °f leave, and if he depart out of town without due warning

he shall be (charged for) two repasts after the time that
he departs out of time, and shall pay, that is to say for each repast
according to the demand of the time whether it be feast day or
week day.

46. Also, it is agreed by the Principal and the common council of
the same hostel (that he) who is of common pension and has been
admitted thereunto for the space of half a year from that day forward,
be charged for his (last) course to undertake all manner of learning
of the same hostel which belong to the Inner Barrister without any
requisition of the Principal for him to do so to charge any other
companion. And that such companion aforesaid who belongs to the
company of the said hostel and has been admitted thereunto for one
year and one day forward be also charged for his (last) course to
undertake all manner of learnings of the said hostel which belong to
the Utter Barrister without any requisition of the Principal for him

388

Regulations Governing Clifford's Inn

to do so to charge any other companion, under penalties contained
within the statues of the said hostel. It is always provided that each
companion above said be at liberty to and appoint his

deputy. And also it is provided that no companion of

the same hostel of his (last) presume to undertake any

learning within the same hostel as Utter Barrister for any of his
companions without assignment and admission of the Principal
except only for his (last) course, etc.

47. Also, it is agreed by the Principal and all the Council of the
said hostel that whatever companion of the said hostel draws any
weapon upon any companion or on the chief cook or under cook in
malice within the same hostel shall forthwith be put out of commons
of the said hostel, etc.

389

INDEX

Action at Law, title of a work by
Kerr in 1853, 39

Admiralty Jurisdiction, how obtained
by City Court, 165-7

Agents, see "Commissioner Kerr"

Alverstone, Lord, Letter to Kerr on his
retirement from, 363

Armorial Bearings belonging to Com-
missioner Kerr, 3

Attorneys' Clerks, see " Commissioner
Kerr"

B

Bacon, Lord, Candidate for Judgeship

of Sheriff's Court, 91 ; impeached for

corruption in administration of justice,

80
Bacon-Shakespeare Controversy, Kerr's

views on, 23-25
Bankrupts, How Commissioner would

have treated, 229

Beginning of an Election, see Election
Billingsgate, Commissioner's views on

practices at, 217
Bill of Sale, Commissioner's sarcastic

description of a, 228
Blackstone, Reviews of Kerr's edition

of, 65-69
Board of Legal Patronage, Suggestions

for the creation of a, 82-3
Book-Hawking, Commissioner's views

about, 213
Brampton, Lord, gives a hint against

over-eagerness to object to questions

in cross-examination, 207-8 ; Letter

to Kerr on retirement from, 362
Brougham, Lord, connection with

Knight, 22 ; mentions Kerr in House

of Lords, 287
Buller, Mr. Justice, Introduction of

Pupilising System was by, 14

Burns, Robert Malcolm first directed

attention to, 9
Bust of Commissioner Kerr at .City of

London Court, 260

Cabinet Etiquette, see " Patronage"

Caveat emptor, Commissioner's caustic
comments on, 219

Chambers, Reading in, 1 5

Circuit System, Remarks on the, 41-46

City of London Court, Inconveniences
of old, 146-8; development of busi-
ness in, 327-37 ; present name con-
ferred upon it, 155 ; diminution of
business in, 341-2 ; equitable juris-
diction conferred upon, 148-50, 330 ;
judicial staff of, not increased, 344 ;
increase in permanent staff of, 344 ;
erection and opening of new build-
ings for, 345 ; Commissioner Kerr's
fortieth anniversary at, 347~9

Classes of Witnesses, Commissioner's
familiarity with, 219

Clifford's Inn, Commissioner Kerr's
connection with, 294, 305 ; Com-
missioner's gifts to Corporation from,
302-5 ; grace at, 298-9 ; history of,
295-8 ; regulations of, Appendix C
(p. 379) ; Thackeray dines at, 299-
300

Commissioner Kerr, birth of, I ; educa-
tion of, 10-13 ; call to Scotch Bar,
13; call to English Bar, 18; marriage
of, 22 ; sworn in as judge, 113; takes
seat at Old Bailey, 113 ; why called
Commissioner, 115, 243; takes seat
in Sheriff's Court, 117 ; early cases
before, 118; Press comments on
first sitting, 119-20; tries case in
commercial French, 126; refuses to
hear "agents," 127-9; insists on

391

Index

robes being worn, 129, 141 ; refuses
to hear attorneys' clerks, 132; re-
forms procedure in his court, 136-
43 ; battles with Corporation, 145-
167 ; battles with Superior Court,
168-188 ; acquitted of charges made
against him, 151-154 ; methods and
sayings in his Civil Court, 189-241 ;
early political views, 269 ; later
political views, 273 ; work at St.
Pancras, 278 et seq. ; reforms at St.
Pancras during his chairmanship,
285 ; celebrates fortieth anniversary
at court, 347-9 ; accepts pension and
resigns, 359-60 ; Corporation's resolu-
tion on his retirement, 360 ; Press
notices on retirement, 361 ; letters
received on retirement, 362-4 ; life
after retirement, 364-5 ; final illness
of, 366 ; death of, 367 ; appreciative
mentions of, 367-73

Commissioner Kerr as a Civil Judge,
Sketches of, 233-41

Commissioner Kerr as a Criminal
Judge, Sketches of, 259-66

Commitment Orders, see "Imprison-
ment for Debt"

Common Law Procedure Act, Kerr's
edition of the 1852 Act, 38 ; Kerr's
edition of the 1854 Act, 56; com-
ments of Press on latter, 58-60

Common Law Procedure Act, 1854,
legal changes wrought by it, 57-8

Common Pleader, Office of, 27 ; Kerr's
candidature for, 28; testimonials in
connection with, 28-29 ; office
abolished, 30

Companies Promotions, Commissioner's
views about, 217

Constitution of City Court, Disputes
about, 145, 160-2, 168-72

Continuous Sittings, Arrangements
made for, 336, 339, 351 ; disputes
about, 342—4

Corrie, William, citizen and Spectacle
Maker, 104 ; qualifications and testi-
monials of, 98 ; polls within two
votes of Kerr, 104 ; subsequently is
elected Remembrancer, 104

Costs, Commissioner's views on, 225, 227

Courts of Conciliation, what they are,
287-9 5 Lord Brougham urges estab-
lishment of, 287 ; Commissioner
Kerr assists him, 287, 291 ; why
Governments opposed to, 292-5

Coventry, Sir Thomas, a former judge
of Sheriff's Court, 91

Credit, Commissioner's views as to, 209
Cremation, Commissioner Kerr's views

as to, 310

D

Defence of Poor Prisoners, Commis-
sioner Kerr thinks Bar ought to
provide for, 259

Deputies, various powers of appointing
in City of London Court, 338

Deputy County Court Judge, Kerr acts
as, 30, 54, 60, 72 ; interesting cases
tried before Kerr as, 31-6

Election, Kerr's definition of what is

the beginning of an, 70
Equitable Jurisdiction obtained by Kerr

for City, 148-50, 330

Fees received and paid at City ot Lon-
don Court during Commissioner's
judgeship, see Appendix A (p. 375)
and Appendix B (p. 377)

Fortieth Anniversary as Commissioner
celebrated at City of London Court,

347-9

Free Justice, Commissioner Kerr's views
on, 226

Garotters, Commissioner's usual treat-
ment of, 254

General Election, Comments of
Saturday Review on a, 37

Glasgow University, Commissioner
Kerr's education at, 1 1 ; confers
LL.D. on Kerr, n

Goldsmith, First good edition of works
of, by R. Malcolm, 8

Grace at Clifford's Inn, see " Clifford's
Inn"

Grand Tour, Taking by Kerr of the,

11-12

Gratuitous Services, Commissioner's

views about, 218
Gurney, Russell, judge of Sheriff's

Court, 91

392

Index

H

Harrison, G. Tarrant, Kerr read with,

17

Harrison, O. B. C., as to, 18
Hawkins, Mr., or Sir Henry. See

Brampton, Lord
Health, Public, Commissioner's views

for protection of, 216; in Criminal

Court, 252-254

Herschell, Lord, remembered for up-
right exercise of his power to make

judicial appointments, 316
Hill, Matthew Davenport, connection

with Kerr, 19-20
Hire- Purchase System, Commissioner's

views on, 211

Imprisonment for Debt, Commissioner
Kerr's views as to, 230 ; Principles
which should guide infliction of, 230

Incorporated Law Society, Kerr lec-
tures at, 61-3

Insolvents disqualified for City Judge-
ship, 109-112; views of Press as to
Corporation decision, 109 ; how Com-
missioner Kerr wished to treat all, 229

Instalment system, the Commissioner's
views upon, 209

Judicial Patronage, Comments on, 77-
91 ; occasional misuses of, even by
Lord Chancellors ; suggestions for
more satisfactory exercise of, 82

Juries, Commissioner's relationships
with, 223,233 ; estimates of, parodied,
241

K

Kerr, see also "Commissioner Kerr";

arms of, 3 ; family of, 2
Tohn, father of Commissioner Kerr,
1-2, 8 ; lived to 90, as a member
of Scotch Bench, 9
Robert, the Covenanter, 4 et seq.
Kerr of Kerrisland, Commissioner Kerr

author of this family history, 5
Kilmarnock Boroughs, John Kerr agent
for Pleydell Bouverie, 2; Commis-
sioner Kerr's political connection
with, 272-5

Knight, Charles, Incidents and stories
connected with, 20-22 ; works of, ibid.

Letters of an Invalid, edited by Kerr,

10

Lincoln's Inn, Kerr's original Inn, 18
LL. Degree conferred on Kerr, 63-4
Literary Connections largely possessed

by Kerr, 38
Loughborough, Lord Chancellor, as

Mr. Wedderburn expelled by Northern

Circuit Bar Mess, 42

M

Macclesfield, Lord, impeached for
selling patronage, 80

Madame Rachel, summary of her case,
244-8 ; legal decision in, 249

Malcolm, Alexander, 10 ; writes Letters
of an Invalid^ edited by Kerr,
10; Robert first edited Goldsmith,
9 ; first drew attention to national
poet Burns, 9 ; editor of Scotch Times
at Glasgow, 9-10 ; Elizabeth, mother
of Commissioner Kerr, 8

Middle Temple, Kerr's connection
with, 18-19

Mitchell, George, connection with Kerr,
17-18

Moneylenders, Kerr's early treatment
of, 122-5; payment by instalments
to, 208 ; allowance of costs to, 208

Moneylenders' Act anticipated by Com-
missioner Kerr, 124

More, Sir Thomas, was judge of
Sheriff's Court, 91

N

Northern Circuit, Kerr's connection
with, 41, 50; great oyster case on,
51-4

Notes (see "Shorthand Notes") taken
by Kerr whenever so asked, 174;
reason for Commissioner Kerr's dis-
like to generally take, 174

O

Oath against Oath, How Commissioner
treated cases of, 222-3; humorous
parody on this, 240-1

393

Index

Parliament, Judge of City Court can
sit in, 267; Commissioner Kerr's
attempts to enter, 267

Parti-coloured garments, Commissioner
Kerr would have made all bankrupts
and insolvents wear, 229

Patronage, Alleged Cabinet etiquette
as to exercise of, 315

Pension, Arrangement made for, in
1898, 353-4 ; cause of failure of these
arrangement, 354 ; final arrangements
for, 357

Perjury in County Courts, 70-1 ; Kerr's
dislike to commit for, 71

Peterborough, Commissioner Kerr's
political connection with, 271-2

Political Views, Commissioner Kerr's
early, 269; Commissioner Kerr's
later, 273

Poor Prisoners' Defence, see "Defence,"
&c.

Prejudice, Commissioner Kerr says
opponent generally does wisely not
to object to evidence offered by way
of, 206-7

Prendergast, Mr. Michael, Kerr's pre-
decessor in judgeship, 74~6

Procedure, Reforms of, in local courts,
136-42

Property and its Duties, Commissioner's
views on, 216

Punch disapproves of Attorney's
robing, 141 ; approves Kerr's sen-
tences in cases of violence, 254

R

Rachel, see "Madame Rachel"
Registrarship, Disputes about, 158-160
Religion and Science, see " Science

and Religion "
Remitted Actions, High Court decides,

can be sent to City Court, 169-73
Robes, see "Commissioner Kerr"

" Sabbatarism," Commissioner Kerr's
views upon, 307

Salary, Disputes about, 150-1, 154-5,
161-7 ; statistics comparing judge's,
and fees received at Court, see
Appendix A (p. 375) ; should have
been on fixed basis, 91 ; ascertain-
able by income of Court, 187

St. Mary's, Munster Square, Commis-
sioner Kerr's close relationship with,
307-9; erects stained-glass window
to wife's memory in, 309

St. Pancras, Commissioner Kerr acts
as Chairman of Guardians at, 278-86 ;
invited to become candidate for
L.C.C. at, 286

Sayings and Methods of Kerr in Court,
189-241

Scotch Bar, Kerr's call to, 13

Science and Religion, Commissioner
Kerr's views as to relations between,
309-10

Seal of Court, Dispute about, 1 56-8

Sentences in Criminal Cases, Discussion
of Commissioner's, 251, 255-8; how
sometimes tempered with humanity,
257, 266

Sermon Manufacturing, Cases about,
192-4

Sewing Machines, Commissioner's
views on selling on purchase-hire,
214-15

Sheriff's Court of London, Constitution
of, 74, 77, 79 ; former judges of, 91 ;
salary paid to judge of, 91-2 ; Kerr's
candidature for judgeship of, 93 ;
names of opposing candidates, 98-
100 ; City Press notices of, 100-2 ;
incidents of election to, 103-8 ;
Press comments of result, 108-12

Shorthand Notes usually relied on by
Kerr, 1 74 ; great utility of, in all
courts, 175-8; Lord Russell of
Killo wen's views about, 175 ; Kerr's
practice as to, explained, 178-80 ;
approved of by High Court and
Press, 1 80- 1, 183; final discussion
about, 182 ; incident explained by
Commissioner, 184-6

Shrewsbury, Commissioner Kerr's
political connection with, 269-71

Snagge, His Honour Judge, assists his
friend the Commissioner, 355 ; kindly
action at a pinch by, 352

Summing up, Commissioner's methods
of, 224 ; in two words, 224 ; in three
words, 251

Tallow Chandler's Company, Commis-
sioner Kerr's connection with, 306-7

Tally-men, Commissioner Kerr's views
on, 209, 211

394

Index

Testimonials given to Kerr for office of
Common Pleader by Matthew Daven-
port Hill, 28; by Mr. Wilde, ibid;
and by Mr. Tarrant Harrison, 29

Testimonials given to Kerr for City
Judgeship from Sir Richard Bethell,
95 ; Lord Brougham, 95 ; Matthew
Davenport Hill, 25; Sir Henry
Keating, 96 ; Sir Fitzroy Kelly, 96 ;
Judge Koe, 96; J. G. Phillimore,
97 ; as to propriety of supporting
more than one candidate by, 97

Thackeray, visit to Clifford's Inn, 299 ;
origin of Sponging House story in
Vanity Fair, 299-300

Tillicoultry, Kerr educated at, 10

Truth, Commissioner Kerr suggested
motto for, 3 1 1

U
University of Glasgow, Kerr's career

at, 10-11 ; LL.D. degree conferred on

Kerr by, 63
Utrecht Cathedral, Brass erected in,

5-7

V

Vanity Fair, see " Thackeray "
Portrait of Commissioner, frontis-
piece ; notice of Commissioner in,
300

Vinnicombe, Kerr's connection with
family of, 22

Violence, Commissioner Kerr's sen-
tences in cases of, 254

W

Wedderburn, Mr., see «« Loughborough,

Lord Chancellor "
Westbury, Lord, censured by House of

Commons for manner of exercising

patronage, 81

Wild, S. F. T., Kerr read with, 17
Wolverhampton, Commissioner Kerr's

political connection with, 267-9
Women, Commissioner Kerr's treatment

of assaults on, 254
Women on Boards, Commissioner

Kerr's views as to great use of,

279

Working Man, Views about, 219-221
Writing, Commissioner's views for

necessity of, 223

Young, Lord, Scotch Judge, friend
Commissioner Kerr, 2O2n

395

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THE LIBRARY OF LITERARY HISTORY

Each with Photogravure Frontispiece, demy Svo, cloth, 16s.

V The idea of the Series is to take the intellectual growth and
artistic achievement of a country and to set out the story of these
in an interesting way. Each volume will be entrusted to a recog-
nised scholar, and, when advisable, the aid of foreign men of letters
will be invited.

1. A Literary History of India. By R. W. FRAZER,

LL.B.

" A work which, for the first time, renders it possible for the
English reader to understand the part which literature has played
not only in ancient or in mediaeval or in modern India, but in India
from the earliest times to the present day. . . The sense of deve-
lopment is never absent from his story, nor does he fear to touch
on topics from which the ordinary orthodox writer in England
shrinks." — The Times,

2. A Literary History of Ireland. By Dr. DOUGLAS

HYDE.

" If we are not greatly mistaken, this is a book of very exceptional
value and importance. We are quite certain there exists no
book in English which attempts what Dr. Hyde has accomplished,
namely, a clear account of the whole literature produced in Irish
Gaelic, and a reasonable estimate of its value."— -Spectator.

3. A Literary History of America. By BARRETT WEN-

DELL.

" Learning it has, and style, and thought ; the information is
full, the order lucid ; in the punctilio which respects living
writers and present institutions, it reminds one almost of an
inaugural address at the French Academy. . . . Professor Wen-
dell has put forth an admirable, a suggestive study of his country's
writers. To me eVery page is interesting."— Bookman.

IN PREPARATION.

4. A Literary History of Persia. By Professor E. G.

BROWNE.

5. A Literary History of the Jsws. By ISRAEL

ABRAHAM.

6. A Literary History of Russia. By ELLIS H. MINNS.

ii, Paternoster Buildings, London, E.G. t

U The LITERARY PEN is the Best. U

"Mr. Fisher Unwin has beguiled hi*
leisure moment! with experimenting in
pens, and now 'The Literary Pen 'is
issued in a nice little booklet box for
the benefit of author*. It is guaran-
teed to write anything from a sonnet
to an epic, and it certainly runs very
easily and quickly. 'IT is the letter
it bears, and 'U' it will, doubtless,
remain to a grateful posterity."— Black
and White.

*

" Certainly the new nibs are excel-
lent—a great im-
provement on the
average 'J.'" — JOHN
OLIVER HOBBBS.

"For writing easily,
legibly, and without
excessive use of ink —
which is a saving
of time in dipping
— the 'Literary U
Pen ' which Mr.
Fisher Unwin has
brought out cannot
be excelled. Its ac-
tion is smooth, and
very like that of a
quill." —

Lteds Mereury.
*

" We like the way

it writes. It is an improvement on the
best pen we have used, and will
speedily become popular with those
who appreciate an easy pen to write
with."— Sheffield Daily Independtnt.
*

"A new pen, the merits of which
are undoubted. We have been using
one of these 'U' nibs for the past
week, and it still writes as well as
when we first inserted it in the holder.
There is certainly a successful future in
store for the ' Literary U.' "—Bookseller.

" Proves to be an easy running but
not too soft pen, with which one may
write at great speed."— Newsagent.
*

"Anyone who loves the smooth
action of the quill and the distinctness
of the finest-pointed steel nib com-
bined, should get a box of 'U' Pens at
once." — Weekly Times and Echo.
*

"We can recommend it for the
smoothness with which it passes over
paper."— East
A nglian Daily Times.

*

"We have tried the
'U' and like it."—
Academy.
*

"It is a pleasant,
smooth-running pen,
and altogether very
agreeable to work
with. It ought to be
a boon to those who
write much."—
Dublin Daily

Express.
*

"Writes very
smoothly, and all
who write much
know that that is the
first quality desired

in a pen."— Rtyi tlds' Newspaper.

*
"Altogether eery agreeable to work

with. It ought to be a boon to those

who write much." — Warder.

"It it a good pen and justifies its
title."— People.

" Literary workers will find the Lite-
rary Pen well worth their attention."—
Publisher* Circular.

U Smooth Running, with a Quill-like Action. U

T. FISHER UNWIN, Publisher,

Recent Volumes in the

STORY OF THE NATIONS

A SERIES OF POPULAR HISTORIES.

Each Volume complete with Maps, many Illustrations, and an Index
Large crown %vo, fancy cloth, gold lettered, or Library Edition, dark
cloth, burnished red top, 5s. each. Or may be had in half Persian, cloth
sides, gilt tops : Price on Application.

49. Austria. By SIDNEY WHITMAN.

50. Modern England before the Reform Bill. By

JUSTIN MCCARTHY.

51. China. With a New Chapter on Recent Events.

By Prof. R. K. DOUGLAS.

52. Modern England under Queen Yictoria. By

JUSTIN MCCARTHY.

53. Modern Spain, 1878-1898. By MARTIN A. S.

HUME, F.R.H.S., Author of "Sir Walter Ralegh," &c.

54. Modern Italy, 1758-1898. By PIETRO ORSI,

Professor of History in the R. Liceo Foscarini, Venice.
With over 40 Illustrations and Maps.

55. Norway. By Professor HJALMAR H. BOYESEN,

Author of " Idylls of Norway."

56. Wales. By OWEN EDWARDS.

IN PREPARATION.

The United States of America, 1783-1900. By A.

C. M'LAUGHLIN. In 2 Volumes.

The Papal Monarchy: From Gregory the Great to
Boniface VIII. By Rev. W. BARRY.

Mediaeval Rome. By WILLIAM MILLER.
Buddhist India. By T. W. RHYS DAVIDS.

The Story of Greece (to the Roman Occupation). By
E. S. SHUCKBURGH.

The Story of Greece (from the Roman Occupation

to A.D. 1453). By E. S. SHUCKBURGH.

ii, Paternoster Buildings, London, E.G.

2 D

T. FISHER UNWIN, Publisher,

BUILDERS OF GREATER
BRITAIN

H. F. WILSON

A Set of IQ Volumes, tack witk Photogravure Fra*tupMc*%
and Map, large crown Si*., tbth^ &•. tack.

The completion of the Sixtieth year of the Qoan's reign will t» the oeoMkm of mnch
retrospect and review, in the coarse of which the great men who, tinder the auspices of Her
Majesty and her predecessors, have helped to make the British Empire what it is to-day,
will naturally be brought to mind. Hence the idea of the present series. These biographies,
concise bat foil, popular bat authoritative, have been designed with the view of giving in
each case an adequate picture of the builder in relation to his work.

The series will be under the general editorship of Mr. H. F. Wilson, formerly Fellow
of Trinity College, Cambridge, and now private secretary to the Right Hon. J. Chamberlain
at the Colonial Office. Each volume will be placed in competent hands, and will contain
the best portrait obtainable of its subject, and a map showing his special contribution to
the Imperial edifice. The fast to appear will be a Life of Sir Walter Ralegh, by Major
Hume, the learned author of " The Year after the Armada," Others in contemplation will
deal with the Cabots, the quarter-centenary of whose sailing from Bristol is has recently been
celebrated in that city, as well as in Canada and Newfoundland ; Sir Thomas Maitland, the
"King Tom" of the Mediterranean; Rajah Brooke, Sir Stamford Raffles, Lord Cli»«.
Edward Gibbon Wakefield, Zachary Maeautay, &c, &c.

The Series has taken for its motto the Mihonfte prayer t—

€0ou JB0o of C0t free ffroce *&«* MXb «J> *#• griftannfeft
<gmf ire to a gforiotu anb enttafife eefeW* »tf 0 off §er
afiouf §ert stag u* in t^u fefc'ctrte.**

1. SIR WALTER RALEGH. By MARTIN A. S. HUMS, Author

of " The Courtships of Queen Elizabeth," &c.

2. 5IR THOMAS MAITLAND; the Mastery of the Mediterranean.

By WALTER FREWBN LORD.

3. JOHN CABOT AND HIS SONS; the Discovery of North

America. By a RAYMOND BRAZUTY, M.A.

4. EDWARD OIBBON WAKEFIELD; the Colonisation of South

Australia and New Zealand. By R. GARNETT, C.B., L.L.D.

$. LORD CLIVE; the Foundation of British Rok in lodk. By Sir

A. J. ARBUTHHOT, K.C.S.I., C.I.E.
RAJAH BROOKE; the Englishman as Ruler of KB Eastern

State. By Sir SPENSER ST. JOHN, G.C.M.G.
ADMIRAL PHILIP; the Founding of New South Wales. By

Louis BECKE and WALTER JEFFERY.

5IR STAMFORD RAFFLES; England in the Far East. By

the Editor.

11, Paternoster Buildings, London, E.G. M

T. FISHER UXfWIN, Publisher,

MASTERS OF MEDICINE

KCITtD BT

ERNEST HART, D.C.L.,

Editor of "The British Medical Jojinal."

•9
Urgt en/mm 8«.., cteA, 3a. 6d. ««&

M«dical discoveries more directly coswern the well-being and happiness of tbe rnman
tvce than any victories of science. They appeal to one of the primary instincts uf human
nature, that of self-preservation. The importance of health as the most valuable of
;.mr national assets is coming to be more and more recognised, and the place of the doctor
in Society and in the State fa becoming one of steadily increasing prominence ; indeed,
Mr. Gladstone said not many years ago that tbe time would sorely come when the medical
profession would take precedence of all the others in authority as well as in dignity. The
development of medicine from an eaapiric art to an exact science is one of the mos<
important and also one of the most interesting chapters in the history of civilisation. TV
histories of medicine which exist an for the most part only fitted for the intellect ua

digestion of Dryasdust and his congeners. Of the men who made the discoveries whici.
of human lives, and which have lengthened the span of
human existence, there is often no record at all accessible to the general reader. Yet the

story of these men's lives, of their struggles and of their triumphs, is not only interesting,
but in tbe highest degree stimulating and educative. Many of them could have said with
literal truth what Sir Thomas Browne said figuratively, that their lives were a romance.
Hitherto there have be*o no accounts of the lives of medical discoverers in a form at once
convenient aad uniform, and sold at a popular price. The " Masters of Medicine " is a
•cries of biographies written by " eminent hands " intended to supply this want. It is
intended that the maa shall be depicted as he moved and lived and had his being, and that
the scope and gist of his work, as well M the steps by which he reached his results, shall
to s«t forth in a clear, readable style.

The following is a ca»den»ed u»t d some of the earlier volumes ~-
AUTHOR. TITLE.

STEPHEN PAGBT . * . John Hunter

LVARCY POWER . - . William Harvey

H. LAING GORDON . . . Sir James Simpson

JOHN G. McKENDRiCK . . Hermann von Helmholt*

SIR WILLIAM STOKES . . William Stokes

MICHAEL FOSTER . . * Claude Bernard

TIMOTHY HOLMES . . . Sir Benjamin Brodic

]. F. PAYNE .... Thomas Sydenham

C. L. TAYLOR . . Vesalius .

11. Paternoster Building*, London, K.G. M

F. C. GOULD'S FROISSART.

SIR BLUNDELL DE MAPLE PROTESTETH THAT TOWEL-HORSES WOULD HAVE BETTER
SERVED THE ARMY THAN THE HORSES THAT HAD BEEN BOUGHT IN HUNGARY.

TWO VOLUMES.

1. FROISSART'S MODERN CHRONICLES, 1901.

2. FROISSART'S MODERN CHRONICLES, 1902.

TOLD AND PICTURED BY F. C. GOULD.

Each volume Cloth, foolscap 4/0, 3.5-. 6d.

Also, a Fine Edition of Vol. //., limited to 50 copies, on Japan Paper,
numbered and signed, 2ls. net.

"The second volume of Mr. F. C. Gould's * Froissart's Modern
Chronicles ' is fully equal to the first. The rich vein of pure gold,
which the artist-author has struck, is far from exhausted. F. C. G.
ranks easily first among English political caricaturists ; we doubt, indeed,
if he is surpassed by any living exponent of his very special craft."

Daily Telegraph.

"Mr. Gould, I think, may well be 'orgulous' in having written a
delightful work of light satire, in which, as in all he does, there is never
a foul stroke. No words of mine can paint the joy of the lover of humorous
pencil-work, who shall get hold of the ' Modern Chronicles.' It is, after
all, as a picture-maker that F. C. G. stands entirely alone." — Vanity Fair.

"The drollest, most ingenious, and most versatile of living political
caricaturists. " — World.

T. FISHER UN WIN, u, PATERNOSTER BUILDINGS, LONDON, E.G.

DA Pitt-Lewis, George, 1845-1906.

565 e Commissioner Kerr :

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